32264 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AX11 

Taking and Importing Marine 

Mammals; U.S. Navy’s Research, 

Development, Test, and Evaluation 

Activities Within the Naval Sea 

Systems Command Naval Undersea 

Warfare Center Keyport 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 the Navy’s Research, 

Development, Test, and Evaluation 

(RDT&E) activities within the Naval Sea 

System Command (NAVSEA) Naval 

Undersea Warfare Center (NUWC) 

Keyport Range Complex and the 

associated proposed extensions for the 

period of September 2009 through 

September 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 August 6, 

2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AX11, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Hand delivery or mailing of paper, 

disk, or CD–ROM: Comments should be 

addressed to Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910–3225. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

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

137. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the Navy’s application may 

be obtained by writing to the address 

specified above (see ADDRESSES), 

telephoning the contact listed above (see 

FOR FURTHER INFORMATION CONTACT), or 

visiting the internet at: http:// 

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

incidental.htm. The Navy’s Draft 

Environmental Impact Statement (DEIS) 

for the Keyport Range Complex RDT&E 

and range extension activities was 

published on September 12, 2008, and 

may be viewed at http://wwwkeyport.kpt.nuwc.navy.mil. NMFS 

participated in the development of the 

Navy’s DEIS as a cooperating agency 

under the National Environmental 

Policy Act (NEPA). 

Background 

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

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

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment, notice of a 

proposed authorization is provided to 

the public for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The National Defense Authorization 

Act of 2004 (NDAA) (Public Law 108– 

136) removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations in sections 101(a)(5)(A) and 

(D) 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 May 15, 2008, NMFS received an 

application from the Navy requesting 

authorization for the take of 5 species of 

marine mammals incidental to the 

RDT&E activities within the NAVSEA 

NUWC Keyport Range Complex 

Extension over the course of 5 years. 

These RDT&E activities are classified as 

military readiness activities. On April 

29, 2009, NMFS received additional 

information and clarification on the 

Navy’s proposed NAVSEA NUWC 

Keyport Range Complex Extension 

RDT&E activities. The Navy states that 

these RDT&E activities may cause 

various impacts to marine mammal 

species in the proposed action area. The 

Navy requests an authorization to take 

individuals of these marine mammals 

by Level B Harassment. Please refer to 

Tables 6–23, 6–24, 6–25, and 6–26 of 

the Navy’s Letter of Authorization 

(LOA) application for detailed 

information of the potential marine 

mammal exposures from the RDT&E 

activities in the Keyport Range Complex 

Extension per year. However, due to the 

proposed mitigation and monitoring 

measures and standard range operating 

procedures in place, NMFS estimates 

that the take of marine mammals is 

likely to be lower than the amount 

requested. NMFS does not expect any 

marine mammals to be killed or injured 

as a result of the Navy’s proposed 

activities, and NMFS is not proposing to 

authorize any injury or mortality 

incidental to the Navy’s proposed 

RDT&E activities within the Keyport 

Range Complex Extension. 

Background of Navy Request 

The Navy proposes to extend the 

NAVSEA NUWC Keyport Range 

Complex in Washington State. The 

NAVSEA NUWC Keyport Range 

Complex has the infrastructure to 

support RDT&E activities. Centrally 

located within Washington State, the 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32265 

NAVSEA NUWC Keyport Range 

Complex has extensive existing range 

assets and capabilities. The NAVSEA 

NUWC Keyport Range Complex is 

composed of Keyport Range Site, Dabob 

Bay Range Complex (DBRC) Site, and 

Quinault Underwater Tracking Range 

(QUTR) Site (see Figure 1–1 of the 

Navy’s LOA application). 

The goal of the Proposed Action is to 

extend the operational areas of each 

range site. Extending the Range 

Complex operating areas outside 

existing range boundaries will allow the 

Navy to support existing and future 

range activities including evolving 

manned and unmanned vehicle program 

needs in multiple marine environments. 

With the proposed extension of the 

Keyport and QUTR range sites, the 

range sites could support more 

activities, which include increases in 

the numbers of tests and days of testing. 

No additional operational tempo is 

proposed for the DBRC Site. Existing 

and evolving range activities applied for 

in this LOA application include RDT&E 

and training of system capabilities such 

as guidance, control, and sensor 

accuracy of manned and unmanned 

vehicles in multiple marine 

environments (e.g., differing depths, 

salinity levels, temperatures, sea states, 

etc.). 

The range extension is necessary to 

provide adequate testing area and 

volume (i.e., surface area and water 

depth) in multiple marine 

environments. The extension enables 

the NUWC Keyport to fulfill its mission 

of providing test and evaluation services 

in both surrogate and simulated warfighting environments for emerging 

manned and unmanned vehicle program 

activities. Within the NAVSEA NUWC 

Keyport Range Complex Extension, the 

NUWC Keyport activities include 

testing, training, and evaluation of 

systems capabilities such as guidance, 

control, and sensor accuracy of manned 

and unmanned vehicles in multiple 

marine environments (e.g., differing 

depths, salinity levels, temperatures, sea 

states, etc.). 

NUWC Keyport consists of 340 acres 

(138 hectares [ha]) on the shores of 

Liberty Bay and Port Orchard Reach 

(a.k.a. Port Orchard Narrows), and is 

located adjacent to the town of Keyport, 

due west of Seattle. NUWC Keyport, a 

part of NAVSEA, is the center for 

integrated undersea warfare systems 

dependability, integrated mine and 

undersea warfare supportability, and 

undersea vehicle maintenance and 

engineering. It provides test and 

evaluation, in-service engineering, 

maintenance, Fleet readiness, and 

industrial-based support for undersea 

warfare systems, including RDT&E of 

torpedoes, unmanned vehicles, sensors, 

targets, countermeasure systems, and 

acoustic systems. 

The NAVSEA NUWC Keyport Range 

Complex is divided into open ocean/ 

offshore areas and in shore areas: 

• Open Ocean Area—air, surface, and 

subsurface areas of the NAVSEA NUWC 

Keyport Range Complex that lie outside 

of 12 nautical miles (nm) from land. 

• Offshore Area—air, surface, and 

subsurface ocean areas within 12 nm of 

the Pacific Coast. 

• Inshore—air, surface, and 

subsurface areas within the Puget 

Sound, Port Orchard Reach, Hood 

Canal, and Dabob Bay. 

Keyport Range Site 

Located adjacent to NUWC Keyport, 

this range provides approximately 1.5 

square nautical miles (nm2) (5.1 square 

kilometers [km2]) of shallow underwater 

testing, including in-shore shallow 

water sites and a shallow lagoon to 

support integrated undersea warfare 

systems and vehicle maintenance and 

engineering activities (see Figures 1–2 

and 1–3 of the Navy’s LOA application). 

The Navy has conducted underwater 

testing at the Keyport Range Site since 

1914. Underwater tracking of test 

activities is accomplished by using 

temporary or portable range equipment. 

The range is currently used an average 

of 6 times per year for vehicle testing 

and a variety of boat and diver training 

activities, each lasting 1–30 days. There 

may be several activities in 1 day. The 

range site also supports: (1) Detection, 

classification, and localization of test 

objectives and (2) magnetics 

measurement programs. Explosive 

warheads are not placed on test units or 

tested within the Keyport Range Site. 

DBRC Site 

Currently, the DBRC Site assets 

include the Dabob Bay Military 

Operating Area (MOA), the Hood Canal 

North and South MOAs adjacent to 

Submarine Base (SUBASE) Bangor, and 

the Connecting Waters (see Figures 1–2 

and 1–4 of the Navy’s LOA application). 

The DBRC Site is the Navy’s premier 

location within the U.S. for RDT&E of 

underwater systems such as torpedoes, 

countermeasures, targets, and ship 

systems. Primary activities at the DBRC 

Site support proofing of underwater 

systems, research and development test 

support, and Fleet training and tactical 

evaluations involving aircraft, 

submarines, and surface ships. Tests 

and evaluations of underwater systems, 

from the first prototype and preproduction stages up through Fleet 

activities (inception to deployment), 

ensure reliability and availability of 

underwater systems and their Fleet 

components. As with the Keyport Range 

Site, there are no explosive warheads 

tested or placed on test units. 

The DBRC Site also supports acoustic/ 

magnetic measurement programs. These 

programs include underwater vehicle/ 

ship noise/magnetic signature 

recording, radiated sound 

investigations, and other acoustic 

evaluations. In the course of these 

activities, various combinations of 

aircraft, submarines, and surface ships 

are used as launch platforms. Test 

equipment may also be launched or 

deployed from shore off a pier or placed 

in the water by hand. NUWC Keyport 

currently conducts activities within four 

underwater testing areas in the DBRC 

Site. These areas are: 

• Dabob Bay MOA—a deep-water 

range in Jefferson County approximately 

14.5 nm2 (49.9 km2) in size. The 

acoustic tracking space within the range 

is approximately 7.3 by 1.3 nm (13.5 by 

2.4 km) (9.5 nm2 [32.4 km2]) with a 

maximum depth of 600 ft (183 m). The 

Dabob Bay MOA is the principal range 

and the only component of the DBRC 

Site with extensive acoustic monitoring 

instrumentation installed on the 

seafloor, allowing for object tracking, 

communications, passive sensing, and 

target simulation. 

• Hood Canal MOAs—There are two 

deep-water operating areas adjacent to 

SUBASE Bangor in Hood Canal: Hood 

Canal MOA South, which is 

approximately 4.5 nm2 (15.4 km2) in 

size, and Hood Canal MOA North, 

which is approximately 7.9 nm2 (27.0 

km2) in size. Both areas have an average 

depth of 200 ft (61 m). The Hood Canal 

MOAs are used for vessel sensor 

accuracy tests and launch and recovery 

of test systems where tracking is 

optional. 

• Connecting Waters—the portion of 

the Hood Canal that connects the Dabob 

Bay MOA with the Hood Canal MOAs. 

The shortest distance between the 

Dabob Bay MOA and Hood Canal MOA 

South by water is approximately 5.8 

nm2 (19.8 km2). Water depth in the 

Connecting Waters is typically greater 

than 300 ft (91 m). 

QUTR Site 

The Navy has conducted underwater 

testing at the QUTR Site since 1981 and 

maintains a control center at the 

Kalaloch Ranger Station. As at the other 

range sites, no explosive warheads are 

used at the QUTR Site. The QUTR Site 

is a rectangular-shaped test area of about 

48.3 nm2 (165.5 km2), located 

approximately 6.5 nm (12 km) off the 

Pacific Coast at Kalaloch, Washington. It 

32266 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

lies within the boundaries of the 

Olympic Coast National Marine 

Sanctuary (OCNMS). 

The QUTR Site is instrumented to 

track surface vessels, submarines, and 

various undersea vehicles. Bottom 

sensors are permanently mounted on 

the sea floor for tracking and are 

maintained and configured by the Navy. 

The sensors are connected to the shore 

via cables, which extend under the 

beach to the bluffs and end at a Navy 

trailer in Kalaloch (National Park 

Service [NPS] property). In addition, 

portable range equipment may be set up 

prior to conducting various activities on 

the range and removed after it is no 

longer needed. All communications are 

sent back to NUWC Keyport for 

monitoring. 

This range underlies a small portion 

(W–237A) of the larger airspace unit W– 

237. This airspace complex comprises 

the northern portion of the Pacific 

Northwest Ocean Surface/Subsurface 

Operating Area (OPAREA), NOAA chart 

number 18500 (NOAA, 2006). Activities 

in this airspace are scheduled and 

coordinated with Naval Air Station 

(NAS) Whidbey Island and Commander 

Submarine Force, U.S. Pacific Fleet 

(COMSUBPAC). 

All range areas in the NAVSEA 

NUWC Keyport Range Complex 

Extension include areas where marine 

mammals may be found. Range 

activities will be conducted in the 

Keyport Site, the DBRC, and the QUTR 

Site. The proposed annual usage at each 

site is listed in Table 1. This includes 

tracking sonar systems, side-scan, and 

thermal propulsion systems. 

TABLE 1—PROJECTED ANNUAL DAYS OF USE BY RANGE SITE

Keyport range 

site DBRC site QUTR site— offshore 

QUTR site— 

surf zone 

Current ............................................................................................................. 55 200 14 0

Proposed .......................................................................................................... 60 200 16 30 

Description of the Specified Activities 

Typical activities conducted in the 

NAVSEA NUWC Keyport Range 

Complex Extension on the three existing 

range sites primarily support undersea 

warfare RDT&E program requirements, 

but they also support general equipment 

test and military personnel training 

needs, including Fleet activities. These 

activities involve mid- and highfrequency acoustic sources with the 

potential to affect marine mammals that 

may be present within the NAVSEA 

NUWC Keyport Range Complex 

Extension. Current and proposed 

activities within the Keyport Range 

Complex Extension are listed below: 

Range Activities: Testing That Involves 

Active Acoustic Devices 

A list of the primary active acoustic 

sources used within the NAVSEA 

NUWC Keyport Range Complex with 

information on the frequency bands is 

shown in Table 2. In this document, low 

frequency is defined as below 1 

kiloHertz (kHz), mid frequency is 

defined as between 1 kHz and 10 kHz, 

and high frequency is defined as above 

10 kHz. 

TABLE 2—PRIMARY ACOUSTIC SOURCES COMMONLY USED WITHIN THE NAVSEA NUWC KEYPORT RANGE COMPLEX

Source Frequency (kHz) 

Maximum source 

level 

(dB re 1 μPa-m) 

Sonar: 

General range tracking (at Keyport Range Site) ................................................................................. 10–100 195 

General range tracking (at DBRC and QUTR Sites) ........................................................................... 10–100 203 

UUV tracking ........................................................................................................................................ 10–100 195 

Torpedoes ............................................................................................................................................. 10–100 233 

Range targets and special tests (at Keyport Range Site) ................................................................... 5–100 195 

Range targets and special tests (at DBRC and QUTR Sites) ............................................................. 5–100 238 

Special sonars (e.g., UUV payload) ..................................................................................................... 100–2,500 235 

Fleet aircraft—active sonobuoys and helo-dipping sonars .................................................................. 2–20 225 

Side-scan .............................................................................................................................................. 100–700 235 

Other Acoustic Sources: 

Acoustic modems ................................................................................................................................. 10–300 210 

Target simulator .................................................................................................................................... 0.1–10 170 

Aid to navigation (range equipment) .................................................................................................... 70–80 210 

Sub-bottom profiler ............................................................................................................................... 2–7 210 

35–45 220 

Engine noise (surface vessels, submarines, torpedoes, UUVs) .......................................................... 0.05–10 170 

(1) General Range Tracking 

General range tracking on the 

instrumented ranges and portable range 

sites have active output in relatively 

wide frequency bands. Operating 

frequencies are 10 to 100 kHz. At the 

Keyport Range Site the sound pressure 

level (SPL) of the source (source level) 

is a maximum of 195 dB re 1 μPa-m. At 

the DBRC and QUTR sites, the source 

level for general range tracking is a 

maximum of 203 dB re 1 μPa-m. 

(2) UUV Tracking Systems 

UUV tracking systems operate at 

frequencies of 10 to 100 kHz with 

maximum source levels of 195 dB re 1 

μPa-m at all range sites. 

(3) Torpedo Sonars 

Torpedo sonars are used for several 

purposes including detection, 

classification, and location and vary in 

frequency from 10 to 100 kHz. The 

maximum source level of a torpedo 

sonar is 233 dB re 1 μPa-m. 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32267 

(4) Range Targets and Special Tests 

Range targets and special test systems 

are within the 5 to 100 kHz frequency 

range at the Keyport Range Site with a 

maximum source level of 195 dB re 1 

μPa-m. At the DBRC and QUTR sites, 

the maximum source level is 238 dB re 

1 μPa-m. 

(5) Special Sonars 

Special sonars can be carried as a 

payload on a UUV, suspended from a 

range craft, or set on or above the sea 

floor. These can vary widely from 100 

kHz to a very high frequency of 2,500 

kHz for very short range detection and 

classification. The maximum source 

level of these acoustic sources is 235 dB 

re 1 μPa-m. 

(6) Sonobuoys and Helicopter Dipping 

Sonar 

Sonobuoys and helicopter dipping 

sonars are deployed from Fleet aircraft 

and operate at frequencies of 2 to 20 

kHz with maximum source levels of 225 

dB re 1 μPa-m. Dipping sonars are active 

or passive devices that are lowered on 

cable by helicopters or surface vessels to 

detect or maintain contact with 

underwater targets. 

(7) Side Scan Sonar 

Side-scan sonar is used for mapping, 

detection, classification, and 

localization of items on the sea floor 

such as cabling, shipwrecks, and mine 

shapes. It is high frequency typically 

100 to 700 kHz using multiple 

frequencies at one time with a very 

directional focus. The maximum source 

level is 235 dB re 1 μPa-m. Side-scan 

and multibeam sonar systems are towed 

or mounted on a test vehicle or ship. 

(8) Other Acoustic Sources 

Other acoustic sources may include 

acoustic modems, targets, aids to 

navigation, subbottom profilers, and 

engine noise. 

• An acoustic modem is a 

communication device that transmits an 

acoustically encoded signal from a 

source to a receiver. Acoustic modems 

emit pulses from 10 to 300 kHz at 

source levels less than 210 dB re 1 μPam. 

• Target simulators operate at 

frequencies of 100 Hertz (Hz) (0.1 kHz) 

to 10 kHz at source levels of less than 

170 dB re 1 μPa-m. 

• Aids to navigation transmit location 

data from ship to shore and back to ship 

so the crew can have real-time detailed 

location information. This is typical of 

the range equipment used in support of 

testing. New aids to navigation can also 

be deployed and tested using 70 to 80 

kHz at source levels less than 210 dB re 

1 μPa-m. 

• Subbottom profilers are often 

commercial off-the-shelf sonars used to 

determine characteristics of the sea 

bottom and subbottom such as mud 

above bedrock or other rocky substrate. 

These operate at 2 to 7 kHz at source 

levels less than 210 dB re 1 μPa-m, and 

35 to 45 kHz at less than 220 dB re 1 

μPa-m. 

• There are many sources of engine 

noise including but not limited to 

surface vessels, submarines, torpedoes, 

and other UUVs. The acoustic energy 

generally ranges from 50 Hz to 10 kHz 

at source levels less than 170 dB re 1 

μPa-m. Targets, both mobile and 

stationary, may simulate engine noise at 

these same frequencies. 

Additionally, a variety of surface 

vessels operate active acoustic depth 

sensors (fathometers) within the range 

sites, including Navy, private, and 

commercial vessels. In some cases, one 

or more frequencies are projected 

underwater. Bottom type, depth 

contours, and objects (e.g., cables, 

sunken ships) can be located using this 

equipment. The depth sensors used by 

NUWC Keyport are the same 

fathometers used by commercial and 

recreational vessels for navigational 

safety. Because these instruments are 

widely used and are not found to 

adversely impact the human or natural 

environment, they are not analyzed 

further. 

Range Activities: Testing That Involves 

Non-Acoustic Activities 

(1) Magnetic 

There are two types: (a) Magnetic 

sensors, and (b) magnetic sources. 

Magnetic sensors are passive and do not 

have a magnetic field associated with 

them. The sensors are bottom mounted, 

over the side (stationary or towed) or 

can be integrated into a UUV. They are 

used to sense the magnetic field of an 

object such as a surface vessel, a 

submarine, or a buried target. Magnetic 

sources are used to represent magnetic 

targets or are energized items such as 

power cables for energy generators (e.g. 

tidal). Magnetic sources generate 

electromagnetic fields (EMF). 

Evaluation of EMF (Navy 2008a) has 

shown that sources (e.g. Organic 

Airborne and Surface Influence Sweep 

(OASIS)) used are typically below 23 

gauss (G) and are considered relatively 

minute strength. 

(2) Oceanographic Sensor 

These sensors have been used 

historically to determine marine 

characteristics such as conductivity, 

temperature, and pressure of water to 

determine sound velocity in water. This 

provides information about how sound 

will travel through the water. These 

sensors can be deployed over the side 

from a surface craft, suspended in water, 

or carried on a UUV. 

(3) Laser Imaging Detection and Ranging 

(LIDAR) 

Also known as light detection and 

ranging, LIDAR is used to measure 

distance, speed, rotation, and chemical 

composition and concentration of 

remote solid objects such as a ship or 

submerged object. LIDAR uses the same 

principle as radar. The LIDAR 

instrument transmits short pulses of 

laser light towards the target. The 

transmitted light interacts with and is 

changed by the target. Some of this light 

is reflected back to the instrument 

where it is analyzed. The change in the 

properties of the light enables some 

property of the target to be determined. 

The time it takes the light to travel to 

the target and back to the LIDAR can be 

used to determine the distance to the 

target. Since light attenuates rapidly in 

water, underwater LIDAR uses light in 

the blue-green part of the spectrum as it 

attenuates the least. Common civilian 

uses of LIDAR in the ocean include 

seabed mapping and fish detection. All 

safety issues associated with the use of 

lasers are evaluated for all applicable 

test activities within the range sites 

according to Navy and Federal 

regulations. This bounds the intensity of 

LIDAR used pursuant to this request to 

those systems that meet human safety 

standards. 

(4) Inert Mine Hunting and Inert Mine 

Clearing Exercises 

Associated with testing, a series of 

inert mine shapes are set out in a 

uniform or random pattern to test the 

detection, classification and localization 

capability of the system under test. They 

are made from plastic, metal, and 

concrete and vary in shape. An inert 

mine shape can measure about 10 by 

1.75 ft (3 by 0.5 m) and weigh about 800 

lbs (362 kg). Inert mine shapes either sit 

on the bottom or are tethered by an 

anchor to the bottom at various depths. 

Inert mine shapes can be placed 

approximately 200–300 yards (183–274 

m) apart using a support craft and 

remain on the bottom until they need to 

be removed. All major components of 

all inert mine systems used as ‘targets’ 

for inert mine hunting systems are 

removed within 2 years. 

NMFS does not believe that those 

Range activities that involve nonacoustic testing will have adverse 

impacts to marine mammals, therefore, 

32268 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

they are not analyzed further and will 

not be covered under the proposed rule. 

Increased Activities Due to Range 

Extension 

The proposed range extension would 

expand the geographic area for all three 

range sites and increase the tempo of 

activities in the Keyport and QUTR 

ranges sites. A detailed list of the 

proposed annual range is provided in 

Table 3. 

(1) Keyport Range Site 

Range boundaries of the Keyport 

Range Site would be extended to the 

north, east and south, increasing the 

size of the range from 1.5 nm2 to 3.2 

nm2 (5.1 km2 to 11.0 km2). The average 

annual days of use of the Keyport Range 

Site would increase from the current 55 

days to 60 days. 

(2) DBRC Site 

The southern boundary of DBRC Site 

would be extended to the Hamma 

Hamma River and its northern boundary 

would be extended to 1 nm (2 km) south 

of the Hood Canal Bridge (Highway 

104). This extension would increase the 

size of the current operating area from 

approximately 32.7 nm2 (112.1 km2) to 

approximately 45.7 nm2 (150.8 km2) 

and would afford a straight run of 

approximately 27.5 nm (50.9 km). There 

would be no change in the number and 

types of activities from the existing 

range activities at DBRC Site, and no 

increase in average annual days of use 

due to the range extension at this site. 

(3) QUTR Site 

Range boundaries of QUTR Site 

would be extended to coincide with the 

overlying special use airspace of W– 

237A plus a 7.8 nm2 (26.6 km2) surf 

zone at Pacific Beach. The total range 

area would increase from approximately 

48.3 nm2 (165.5 km2) to approximately 

1,839.8 nm2 (6,310.2 km2). The average 

annual number of days of use for 

offshore activities would increase from 

14 days/year to 16 days/year in the 

offshore area. The average annual days 

of use for surf-zone activities would 

increase from 0 days/year to 30 days/ 

year. 

Description of Marine Mammals in the 

Area of the Specified Activities 

The information on marine mammals 

and their distribution and density are 

based on the data gathered from NMFS, 

United States Fish and Wildlife Service 

(USFWS) and recent references, 

literature searches of search engines, 

peer review journals, and other 

technical reports, to provide a regional 

context for each species. The data were 

compiled from available sighting 

records, literature, satellite tracking, and 

stranding and by-catch data. 

A total of 24 cetacean species and 

subspecies and 5 pinniped species are 

known to occur in Washington State 

waters; however, several are seen only 

rarely. Seven of these marine mammal 

species are listed as Federallyendangered under the Endangered 

Species Act (ESA) occur or have the 

potential to occur in the proposed 

action area: blue whale (Balaenoptera 

musculus), fin whale (B. physalus), Sei 

whale (B. borealis), humpback whale 

(Megaptera novaengliae), north Pacific 

right whale (Eubalaena japonica), sperm 

whale (Physeter macrocephalus), and 

the southern resident population of 


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killer whales (Orcinus orca). The 

species, Steller sea lion (Eumetopias 

jubatus), is listed as threatened under 

the ESA. 

Survey data concerning the inland 

waters of Puget Sound are sparse. There 

have been few comprehensive studies of 

marine mammals in inland waters, and 

those that have occurred have focused 

on inland waters farther north (Strait of 

Juan de Fuca, San Juan/Gulf Islands, 

Strait of Georgia) (Osmek et al., 1998). 

Most published information focuses on 

single species (e.g., harbor seals, Jeffries 

et al., 2003) or are stock assessment 

reports published by NMFS (e.g., 

Carretta et al., 2008). 

Survey data for the offshore waters of 

Washington State, including the area of 

the QUTR Site, are somewhat better, 

particularly for cetaceans. The NMFS 

conducted vessel surveys in the region 

in 1996 and 2001, which are 

summarized in Barlow (2003) and 

Appler et al. (2004). Vessel surveys 

were again conducted by NMFS in 

summer 2005, and included finer-scale 

survey lines within the OCNMS 

(Forney, 2007). Cetacean densities from 

this most recent effort were used 

wherever possible; older density values 

(2001 or 1996) were used when more 

recent values were not available. Some 

cetacean densities (gray and killer 

whale, harbor porpoise) were obtained 

from sources other than the broad scale 

surveys indicated above and the 

methodologies of deriving the densities 

are included in the Navy’s LOA 

application. 

Pinniped at-sea density is not often 

available because pinniped abundance 

is most often obtained via shore counts 

of animals at known rookeries and 

haulouts. Therefore, densities of 

pinnipeds were derived 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. 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, they 

assume that animals are always 

distributed evenly within an area, 

which is likely rarely true. However, 

this remains one of the few means 

available to determine at-sea density for 

pinnipeds. 

Sea otters occur along the northern 

Washington coast. Density of sea otters 

was published as animals/km, which 

was modified to provide density per 

area. Since sea otters are under the U.S. 

Fish and Wildlife Service jurisdiction, 

they are not considered in this 

document. 

The following are brief descriptions of 

the temporal and spatial distribution 

and abundance of marine mammals 

throughout the NAVSEA NUWC 

Keyport Range Complex Extension. 

Keyport Range Site 

A total of five cetaceans and three 

pinnipeds are known to occur within 

central Puget Sound, which 

encompasses the Keyport action area, 

but several of these species have never 

been observed in Port Orchard Narrows 

or in the action area (Table 4). 

Humpback whales, minke whales, killer 

whales, and Steller sea lions are 

expected to be uncommon to rare in 

southern Puget Sound and have never 

been seen in the Keyport action area. 

Density estimates for these species are 

available for Puget Sound as a whole, 

but since these species have never been 

recorded or observed in the action area, 

the densities for the action area are 

shown as ‘‘0’’ to reflect this. The 

proposed extension area of the Keyport 

Range Site is listed as critical habitat for 

Southern Resident killer whales. The 

current Keyport Range Site is outside 

the critical habitat area. 

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DBRC Site 

Six cetaceans and three pinnipeds are 

known to occur or potentially occur 

within the DBRC action area (Table 5). 

Density estimates for these species are 

available for Puget Sound as a whole, 

but since these species have never been 

recorded or observed in the action area, 

the densities for the action area are 

shown as ‘‘0’’ to reflect this. There is no 

designated or proposed critical habitat 

for marine mammals within the DBRC 

action area. 


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3.2.3 QUTR Site 

The diversity of marine mammals that 

occur in QUTR is greater than that in 

the Puget Sound ranges and is listed in 

Table 6. 

BILLING CODE 3510–22–P 


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More detailed description of marine 

mammal density estimates within the 

NAVSEA NUWC Keyport Range 

Complex Extension is provided in the 

Navy’s LOA application. 

A Brief Background on Sound 

An understanding of the basic 

properties of underwater sound is 

necessary to comprehend many of the 

concepts and analyses presented in this 

document. A summary is included 

below. 

Sound is a wave of pressure variations 

propagating through a medium (for the 

sonar considered in this proposed rule, 

the medium is marine water). Pressure 

variations are created by compressing 

and relaxing the medium. Sound 

measurements can be expressed in two 

forms: intensity and pressure. Acoustic 

intensity is the average rate of energy 

transmitted through a unit area in a 

specified direction and is expressed in 

watts per square meter (W/m2). Acoustic 

intensity is rarely measured directly, it 

is derived from ratios of pressures; the 

standard reference pressure for 

underwater sound is 1 microPascal 

(microPa); for airborne sound, the 

standard reference pressure is 20 

microPa (Urick, 1983). 

Acousticians have adopted a 

logarithmic scale for sound intensities, 

which is denoted in decibels (dB). 

Decibel measurements represent the 

ratio between a measured pressure value 

and a reference pressure value (in this 

case 1 microPa or, for airborne sound, 

20 microPa). The logarithmic nature of 

the scale means that each 10 dB increase 

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

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

1,000-fold increase). Humans perceive a 

10-dB increase in noise as a doubling of 

sound level, or a 10 dB decrease in 

noise as a halving of sound level. The 

term ‘‘sound pressure level’’ implies a 

decibel measure and a reference 

pressure that is used as the denominator 

of the ratio. Throughout this document, 

NMFS uses 1 microPa as a standard 

reference pressure unless noted 

otherwise. 

It is important to note that decibels 

underwater and decibels in air are not 

the same and cannot be directly 

compared. To estimate a comparison 

between sound in air and underwater, 

because of the different densities of air 

and water and the different decibel 

standards (i.e., reference pressures) in 

water and air, a sound with the same 

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

would be approximately 61.5 dB lower 

in air. Thus, a sound that is 160 dB loud 

underwater would have the same 

approximate effective intensity as a 

sound that is 98.5 dB loud in air. 

Sound frequency is measured in 

cycles per second, or Hertz (abbreviated 

Hz), and is analogous to musical pitch; 

high-pitched sounds contain high 

frequencies and low-pitched sounds 

contain low frequencies. Natural sounds 

in the ocean span a huge range of 

frequencies: from earthquake noise at 5 

Hz to harbor porpoise clicks at 150,000 

Hz (150 kHz). These sounds are so low 

or so high in pitch that humans cannot 

even hear them; acousticians call these 

infrasonic and ultrasonic sounds, 

respectively. A single sound may be 

made up of many different frequencies 

together. Sounds made up of only a 

small range of frequencies are called 

‘‘narrowband’’, and sounds with a broad 

range of frequencies are called 

‘‘broadband’’; airguns are an example of 

a broadband sound source and tactical 

sonars are an example of a narrowband 

sound source. 

When considering the influence of 

various kinds of sound on the marine 

environment, it is necessary to 

understand that different kinds of 

marine life are sensitive to different 

frequencies of sound. Based on available 

behavioral data, audiograms derived 

using auditory evoked potential, 

anatomical modeling, and other data, 

Southall et al. (2007) designated 

‘‘functional hearing groups’’ and 

estimated the lower and upper 

frequencies of functional hearing of the 

groups. Further, the frequency range in 

which each group’s hearing is estimated 

as being most sensitive is represented in 

the flat part of the M-weighting 

functions developed for each group. The 

functional groups and the associated 

frequencies are indicated below: 

• Low frequency cetaceans (13 

species of mysticetes): Functional 

hearing is estimated to occur between 

approximately 7 Hz and 22 kHz. 

• Mid-frequency cetaceans (32 

species of dolphins, six species of larger 

toothed whales, and 19 species of 

beaked and bottlenose whales): 

Functional hearing is estimated to occur 

between approximately 150 Hz and 160 

kHz. 

• High frequency cetaceans (eight 

species of true porpoises, six species of 

river dolphins, Kogia, the franciscana, 

and four species of cephalorhynchids): 

Functional hearing is estimated to occur 

between approximately 200 Hz and 180 

kHz. 

• Pinnipeds in Water: Functional 

hearing is estimated to occur between 

approximately 75 Hz and 75 kHz, with 

the greatest sensitivity between 

approximately 700 Hz and 20 kHz. 

• Pinnipeds in Air: Functional 

hearing is estimated to occur between 

approximately 75 Hz and 30 kHz. 

Because ears adapted to function 

underwater are physiologically different 

from human ears, comparisons using 

decibel measurements in air would still 

not be adequate to describe the effects 

of a sound on a cetacean. When sound 

travels away from its source, its 

loudness decreases as the distance from 

the source increases (propagation). 

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 


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exposed to sound that is 160 dB loud, 

depending on how the sound 

propagates. As a result, it is important 

not to confuse source levels and 

received levels when discussing the 

loudness of sound in the ocean. 

As sound travels from a source, its 

propagation in water is influenced by 

various physical characteristics, 

including water temperature, depth, 

salinity, and surface and bottom 

properties that cause refraction, 

reflection, absorption, and scattering of 

sound waves. Oceans are not 

homogeneous and the contribution of 

each of these individual factors is 

extremely complex and interrelated. 

The physical characteristics that 

determine the sound’s speed through 

the water will change with depth, 

season, geographic location, and with 

time of day (as a result, in actual sonar 

operations, crews will measure oceanic 

conditions, such as sea water 

temperature and depth, to calibrate 

models that determine the path the 

sonar signal will take as it travels 

through the ocean and how strong the 

sound signal will be at a given range 

along a particular transmission path). As 

sound travels through the ocean, the 

intensity associated with the wavefront 

diminishes, or attenuates. This decrease 

in intensity is referred to as propagation 

loss, also commonly called transmission 

loss. 

Metrics Used in This Document 

This section includes a brief 

explanation of the two sound 

measurements (sound pressure level 

(SPL) and sound exposure level (SEL)) 

frequently used in the discussions of 

acoustic effects in this document. 

SPL 

Sound pressure is the sound force per 

unit area, and is usually measured in 

microPa, where 1 Pa is the pressure 

resulting from a force of one newton 

exerted over an area of one square 

meter. SPL is expressed as the ratio of 

a measured sound pressure and a 

reference level. The commonly used 

reference pressure level in underwater 

acoustics is 1 microPa, and the units for 

SPLs are dB re: 1 microPa. 

SPL (in dB) = 20 log (pressure/ 

reference pressure) 

SPL is an instantaneous measurement 

and can be expressed as the peak, the 

peak-peak, or the root mean square 

(rms). Root mean square, which is the 

square root of the arithmetic average of 

the squared instantaneous pressure 

values, is typically used in discussions 

of the effects of sounds on vertebrates. 

All references to SPL in this document 

refer to the root mean square. SPL does 

not take the duration of a sound into 

account. SPL is the applicable metric 

used in the risk continuum, which is 

used to estimate behavioral harassment 

takes (see Level B Harassment Risk 

Function (Behavioral Harassment) 

Section). 

SEL 

SEL is an energy metric that integrates 

the squared instantaneous sound 

pressure over a stated time interval. The 

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

SEL = SPL + 10log (duration in seconds) 

As applied to tactical sonar, the SEL 

includes both the SPL of a sonar ping 

and the total duration. Longer duration 

pings and/or pings with higher SPLs 

will have a higher SEL. Surface-ship 

hull-mounted sonars, known as tactical 

sonars, are not used by NAVSEA NUWC 

Keyport. 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 the received levels at 

which the onset of temporary threshold 

shift (TTS) and permanent threshold 

shift (PTS) in hearing are likely to occur 

are expressed in SEL. 

Potential Impacts to Marine Mammal 

Species 

The following sections discuss the 

potential effects from noise related to 

active acoustic devices that would be 

used in the proposed Keyport Range 

Complex Extension. 

For activities involving active 

acoustic sources such as tactical sonar, 

NMFS’s analysis identifies the 

probability of lethal responses, physical 

trauma, sensory impairment (permanent 

and temporary threshold shifts and 

acoustic masking), physiological 

responses (particular stress responses), 

behavioral disturbance (that rises to the 

level of harassment), and social 

responses that would be classified as 

behavioral harassment or injury and/or 

would be likely to adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival. 

It should be noted that the description 

below is based on more powerful midfrequency active sonar (MFAS) used on 

surface ships. The NAVSEA NUWC 

Keyport Range does not utilize these 

sources in RDT&E activities. Many of 

these severe effects (e.g., mortality, 

acoustically mediated bubble growth, 

and stranding) are not likely to occur for 

acoustic sources used in the proposed 

Keyport Range activities, as shown in 

Estimated Takes of Marine Mammals 

section. 

Direct Physiological Effects 

Based on the literature, there are two 

basic ways that MFAS might directly 

result in physical trauma or damage: 

Noise-induced loss of hearing 

sensitivity (more commonly-called 

‘‘threshold shift’’) and acoustically 

mediated bubble growth. Separately, an 

animal’s behavioral reaction to an 

acoustic exposure might lead to 

physiological effects that might 

ultimately lead to injury or death, which 

is discussed later in the Stranding 

section. 

Threshold Shift (Noise-Induced Loss of 

Hearing) 

When animals exhibit reduced 

hearing sensitivity (i.e., sounds must be 

louder for an animal to recognize them) 

following exposure to a sufficiently 

intense sound, it is referred to as a 

noise-induced threshold shift (TS). An 

animal can experience temporary 

threshold shift (TTS) or permanent 

threshold shift (PTS). TTS can last from 

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

recovery), occurs in specific frequency 

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

a temporary loss of hearing sensitivity 

between the frequencies of 1 and 10 

kHz)), and can be of varying amounts 

(for example, an animal’s hearing 

sensitivity might be reduced by only 6 

dB or reduced by 30 dB). PTS is 

permanent (i.e., there is no recovery), 

but as with TTS occurs in a specific 

frequency range and amount. 

The following physiological 

mechanisms are thought to play a role 

in inducing auditory TSs: Effects to 

sensory hair cells in the inner ear that 

reduce their sensitivity, modification of 

the chemical environment within the 

sensory cells, residual muscular activity 

in the middle ear, displacement of 

certain inner ear membranes, increased 

blood flow, and post-stimulatory 

reduction in both efferent and sensory 

neural output (Southall et al., 2007). 

The amplitude, duration, frequency, 

temporal pattern, and energy 

distribution of sound exposure all affect 

the amount of associated TS and the 

frequency range in which it occurs. As 

amplitude and duration of sound 

exposure increase, so, generally, does 

the amount of TS. For continuous 

sounds, exposures of equal energy (the 

same SEL) will lead to approximately 

equal effects. For intermittent sounds, 

less TS will occur than from a 

continuous exposure with the same 

energy (some recovery will occur 

between exposures) (Kryter et al., 1966; 

Ward, 1997). For example, one short but 

loud (higher SPL) sound exposure may 

induce the same impairment as one 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32275 

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, animals are not expected to be 

exposed to levels high enough or 

durations long enough to result in PTS). 

PTS is considered auditory injury 

(Southall et al., 2007). Irreparable 

damage to the inner or outer cochlear 

hair cells may cause PTS, however, 

other mechanisms are also involved, 

such as exceeding the elastic limits of 

certain tissues and membranes in the 

middle and inner ears and resultant 

changes in the chemical composition of 

the inner ear fluids (Southall et al., 

2007). 

Although the published body of 

scientific literature contains numerous 

theoretical studies and discussion 

papers on hearing impairments that can 

occur with exposure to a loud sound, 

only a few studies provide empirical 

information on the levels at which 

noise-induced loss in hearing sensitivity 

occurs in nonhuman animals. For 

cetaceans, published data are limited to 

a captive bottlenose dolphin and beluga 

whale (Finneran et al., 2000, 2002b, 

2005a; Schlundt et al., 2000; Nachtigall 

et al., 2003, 2004). 

Marine mammal hearing plays a 

critical role in communication with 

conspecific, and interpreting 

environmental cues for purposes such 

as predator avoidance and prey capture. 

Depending on the frequency range of 

TTS degree (dB), duration, and 

frequency range of TTS, and the context 

in which it is experienced, TTS can 

have effects on marine mammals 

ranging from discountable to serious 

(similar to those discussed in auditory 

masking, below). For example, a marine 

mammal may be able to readily 

compensate for a brief, relatively small 

amount of TTS in a non-critical 

frequency range that takes place during 

a time when the animal is traveling 

through the open ocean, where ambient 

noise is lower and there are not as many 

competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

time when communication is critical for 

successful mother/calf interactions 

could have more serious impacts. Also, 

depending on the degree and frequency 

range, the effects of PTS on an animal 

could range in severity, although it is 

considered generally more serious 

because it is a long term condition. Of 

note, reduced hearing sensitivity as a 

simple function of development and 

aging has been observed in marine 

mammals, as well as humans and other 

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

infer that strategies exist for coping with 

this condition to some degree, though 

likely not without cost. There is no 

empirical evidence that exposure to 

MFAS can cause PTS in any marine 

mammals; instead the probability of 

PTS has been inferred from studies of 

TTS (see Richardson et al., 1995). 

Acoustically Mediated Bubble Growth 

One theoretical cause of injury to 

marine mammals is rectified diffusion 

(Crum and Mao, 1996), the process of 

increasing the size of a bubble by 

exposing it to a sound field. This 

process could be facilitated if the 

environment in which the ensonified 

bubbles exist is supersaturated with gas. 

Repetitive diving by marine mammals 

can cause the blood and some tissues to 

accumulate gas to a greater degree than 

is supported by the surrounding 

environmental pressure (Ridgway and 

Howard, 1979). The deeper and longer 

dives of some marine mammals (for 

example, beaked whales) are 

theoretically predicted to induce greater 

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

rectified diffusion were possible in 

marine mammals exposed to high-level 

sound, conditions of tissue 

supersaturation could theoretically 

speed the rate and increase the size of 

bubble growth. Subsequent effects due 

to tissue trauma and emboli would 

presumably mirror those observed in 

humans suffering from decompression 

sickness. 

It is unlikely that the short duration 

of sonar pings would be long enough to 

drive bubble growth to any substantial 

size, if such a phenomenon occurs. 

Recent work conducted by Crum et al. 

(2005) demonstrated the possibility of 

rectified diffusion for short duration 

signals, but at sound exposure levels 

and tissue saturation levels that are 

improbable to occur in a diving marine 

mammal. However, an alternative but 

related hypothesis has also been 

suggested: Stable bubbles could be 

destabilized by high-level sound 

exposures such that bubble growth then 

occurs through static diffusion of gas 

out of the tissues. In such a scenario the 

marine mammal would need to be in a 

gas-supersaturated state for a long 

enough period of time for bubbles to 

become of a problematic size. Yet 

another hypothesis (decompression 

sickness) has speculated that rapid 

ascent to the surface following exposure 

to a startling sound might produce 

tissue gas saturation sufficient for the 

evolution of nitrogen bubbles (Jepson et 

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

scenario, the rate of ascent would need 

to be sufficiently rapid to compromise 

behavioral or physiological protections 

against nitrogen bubble formation. 

Collectively, these hypotheses can be 

referred to as ‘‘hypotheses of 

acoustically mediated bubble growth.’’ 

Although theoretical predictions 

suggest the possibility for acoustically 

mediated bubble growth, there is 

considerable disagreement among 

scientists as to its likelihood (Piantadosi 

and Thalmann, 2004; Evans and Miller, 

2003). Crum and Mao (1996) 

hypothesized that received levels would 

have to exceed 190 dB in order for there 

to be the possibility of significant 

bubble growth due to supersaturation of 

gases in the blood (i.e., rectified 

diffusion). More recent work conducted 

by Crum et al. (2005) demonstrated the 

possibility of rectified diffusion for 

short duration signals, but at SELs and 

tissue saturation levels that are highly 

improbable to occur in diving marine 

mammals. To date, Energy Levels (ELs) 

predicted to cause in vivo bubble 

formation within diving cetaceans have 

not been evaluated (NOAA, 2002b). 

Although it has been argued that 

traumas from some recent beaked whale 

strandings are consistent with gas 

emboli and bubble-induced tissue 

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

no conclusive evidence of this. 

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

Fernandez et al. (2004, 2005) concluded 

that in vivo bubble formation, which 

may be exacerbated by deep, long 

duration, repetitive dives may explain 

why beaked whales appear to be 

particularly vulnerable to sonar 

exposures. Further investigation is 

needed to further assess the potential 

validity of these hypotheses. More 

information regarding hypotheses that 

attempt to explain how behavioral 

responses to MFAS can lead to 

strandings is included in the 

Behaviorally Mediated Bubble Growth 

section, after the summary of strandings. 

Acoustic Masking 

Marine mammals use acoustic signals 

for a variety of purposes, which differ 

among species, but include 

communication between individuals, 

navigation, foraging, reproduction, and 

learning about their environment (Erbe 

and Farmer, 2000; Tyack, 2000). 

Masking, or auditory interference, 

generally occurs when sounds in the 

environment are louder than and of a 

similar frequency to, auditory signals an 

animal is trying to receive. Masking is 

a phenomenon that affects animals that 

32276 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

are trying to receive acoustic 

information about their environment, 

including sounds from other members 

of their species, predators, prey, and 

sounds that allow them to orient in their 

environment. Masking these acoustic 

signals can disturb the behavior of 

individual animals, groups of animals, 

or entire populations. 

The extent of the masking interference 

depends on the spectral, temporal, and 

spatial relationships between the signals 

an animal is trying to receive and the 

masking noise, in addition to other 

factors. In humans, significant masking 

of tonal signals occurs as a result of 

exposure to noise in a narrow band of 

similar frequencies. As the sound level 

increases, though, the detection of 

frequencies above those of the masking 

stimulus decreases also. This principle 

is expected to apply to marine mammals 

as well because of common 

biomechanical cochlear properties 

across taxa. 

Richardson et al. (1995) argued that 

the maximum radius of influence of an 

industrial noise (including broadband 

low frequency sound transmission) on a 

marine mammal is the distance from the 

source to the point at which the noise 

can barely be heard. This range is 

determined by either the hearing 

sensitivity of the animal or the 

background noise level present. 

Industrial masking is most likely to 

affect some species’ ability to detect 

communication calls and natural 

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

Richardson et al., 1995). 

The echolocation calls of odontocetes 

(toothed whales) are subject to masking 

by high frequency sound. Human data 

indicate low frequency sound can mask 

high frequency sounds (i.e., upward 

masking). Studies on captive 

odontocetes by Au et al. (1974, 1985, 

1993) indicate that some species may 

use various processes to reduce masking 

effects (e.g., adjustments in echolocation 

call intensity or frequency as a function 

of background noise conditions). There 

is also evidence that the directional 

hearing abilities of odontocetes are 

useful in reducing masking at the high 

frequencies these cetaceans use to 

echolocate, but not at the low-to 

moderate frequencies they use to 

communicate (Zaitseva et al., 1980). 

As mentioned previously, the 

functional hearing ranges of marine 

mammals all encompass the frequencies 

of the active acoustic sources used in 

the Navy’s Keyport Range activities. 

Additionally, almost all species’ vocal 

repertoires span across the frequencies 

of the sources used by the Navy. The 

closer the characteristics of the masking 

signal to the signal of interest, the more 

likely masking is to occur. However, 

because the pulse length and duty cycle 

of source signals are of short duration 

and would not be continuous, masking 

is unlikely to occur as a result of 

exposure to active acoustic sources 

during the RDT&E activities in the 

Keyport Range Complex Extension 

Study Area. 

Impaired Communication 

In addition to making it more difficult 

for animals to perceive acoustic cues in 

their environment, anthropogenic sound 

presents separate challenges for animals 

that are vocalizing. When they vocalize, 

animals are aware of environmental 

conditions that affect the ‘‘active space’’ 

of their vocalizations, which is the 

maximum area within which their 

vocalizations can be detected before it 

drops to the level of ambient noise 

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

Lohr et al., 2003). Animals are also 

aware of environmental conditions that 

affect whether listeners can discriminate 

and recognize their vocalizations from 

other sounds, which are more important 

than detecting a vocalization 

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

Dooling, 2004; Marten and Marler, 1977; 

Patricelli et al., 2006). Most animals that 

vocalize have evolved an ability to make 

adjustments to their vocalizations to 

increase the signal-to-noise ratio, active 

space, and recognizability of their 

vocalizations in the face of temporary 

changes in background noise (Brumm et 

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

Vocalizing animals will make one or 

more of the following adjustments to 

their vocalizations: Adjust the frequency 

structure; adjust the amplitude; adjust 

temporal structure; or adjust temporal 

delivery. 

Many animals will combine several of 

these strategies to compensate for high 

levels of background noise. 

Anthropogenic sounds that reduce the 

signal-to-noise ratio of animal 

vocalizations, increase the masked 

auditory thresholds of animals listening 

for such vocalizations, or reduce the 

active space of an animal’s vocalizations 

impair communication between 

animals. Most animals that vocalize 

have evolved strategies to compensate 

for the effects of short-term or temporary 

increases in background or ambient 

noise on their songs or calls. Although 

the fitness consequences of these vocal 

adjustments remain unknown, like most 

other trade-offs animals must make, 

some of these strategies probably come 

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

example, vocalizing more loudly in 

noisy environments may have energetic 

costs that decrease the net benefits of 

vocal adjustment and alter a bird’s 

energy budget (Brumm, 2004; Wood and 

Yezerinac, 2006). Shifting songs and 

calls to higher frequencies may also 

impose energetic costs (Lambrechts, 

1996). 

Stress Responses 

Classic stress responses begin when 

an animal’s central nervous system 

perceives a potential threat to its 

homeostasis. That perception triggers 

stress responses regardless of whether a 

stimulus actually threatens the animal; 

the mere perception of a threat is 

sufficient to trigger a stress response 

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

Seyle, 1950). Once an animal’s central 

nervous system perceives a threat, it 

mounts a biological response or defense 

that consists of a combination of the 

four general biological defense 

responses: Behavioral responses, 

autonomic nervous system responses, 

neuroendocrine responses, or immune 

response. 

In the case of many stressors, an 

animal’s first and most economical (in 

terms of biotic costs) response is 

behavioral avoidance of the potential 

stressor or avoidance of continued 

exposure to a stressor. An animal’s 

second line of defense to stressors 

involves the autonomic nervous system 

and the classical ‘‘fight or flight’’ 

response which includes the 

cardiovascular system, the 

gastrointestinal system, the exocrine 

glands, and the adrenal medulla to 

produce changes in heart rate, blood 

pressure, and gastrointestinal activity 

that humans commonly associate with 

‘‘stress.’’ These responses have a 

relatively short duration and may or 

may not have significant long-term 

effects on an animal’s welfare. 

An animal’s third line of defense to 

stressors involves its neuroendocrine or 

sympathetic nervous systems; the 

system that has received the most study 

has been the hypothalmus-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, 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32277 

corticosterone, and aldosterone in 

marine mammals; Romano et al., 2004) 

have been equated with stress for many 

years. 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

distress is the biotic cost of the 

response. During a stress response, an 

animal uses glycogen stores that can be 

quickly replenished once the stress is 

alleviated. In such circumstances, the 

cost of the stress response would not 

pose a risk to the animal’s welfare. 

However, when an animal does not have 

sufficient energy reserves to satisfy the 

energetic costs of a stress response, 

energy resources must be diverted from 

other biotic functions, which impair 

those functions that experience the 

diversion. For example, when mounting 

a stress response diverts energy away 

from growth in young animals, those 

animals may experience stunted growth. 

When mounting a stress response 

diverts energy from a fetus, an animal’s 

reproductive success and its fitness will 

suffer. In these cases, the animals will 

have entered a pre-pathological or 

pathological state which is called 

‘‘distress’’ (sensu Seyle, 1950) or 

‘‘allostatic loading’’ (sensu McEwen and 

Wingfield, 2003). This pathological state 

will last until the animal replenishes its 

biotic reserves sufficient to restore 

normal function. 

Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses have also been documented 

fairly well through controlled 

experiments; because this physiology 

exists in every vertebrate that has been 

studied, it is not surprising that stress 

responses and their costs have been 

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

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

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

2004; Lankford et al., 2005; Reneerkens 

et al., 2002; Thompson and Hamer, 

2000). Although no information has 

been collected on the physiological 

responses of marine mammals to 

exposure to anthropogenic sounds, 

studies of other marine animals and 

terrestrial animals would lead us to 

expect some marine mammals to 

experience physiological stress 

responses and, perhaps, physiological 

responses that would be classified as 

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

For example, Jansen (1998) reported 

on the relationship between acoustic 

exposures and physiological responses 

that are indicative of stress responses in 

humans (for example, elevated 

respiration and increased heart rates). 

Jones (1998) reported on reductions in 

human performance when faced with 

acute, repetitive exposures to acoustic 

disturbance. Trimper et al. (1998) 

reported on the physiological stress 

responses of osprey to low-level aircraft 

noise while Krausman et al. (2004) 

reported on the auditory and physiology 

stress responses of endangered Sonoran 

pronghorn to military overflights. Smith 

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

induced physiological transient stress 

responses in hearing-specialist fish that 

accompanied short- and long-term 

hearing losses. Welch and Welch (1970) 

reported physiological and behavioral 

stress responses that accompanied 

damage to the inner ears of fish and 

several mammals. 

Hearing is one of the primary senses 

cetaceans use to gather information 

about their environment and to 

communicate with conspecifics. 

Although empirical information on the 

relationship between sensory 

impairment (TTS, PTS, and acoustic 

masking) on cetaceans remains limited, 

it seems reasonable to assume that 

reducing an animal’s ability to gather 

information about its environment and 

to communicate with other members of 

its species would be stressful for 

animals that use hearing as their 

primary sensory mechanism. Therefore, 

we assume that acoustic exposures 

sufficient to trigger onset PTS or TTS 

would be accompanied by physiological 

stress responses because terrestrial 

animals exhibit those responses under 

similar conditions (NRC, 2003). More 

importantly, marine mammals might 

experience stress responses at received 

levels lower than those necessary to 

trigger onset TTS. Based on empirical 

studies of the time required to recover 

from stress responses (Moberg, 2000), 

we also assume that stress responses are 

likely to persist beyond the time interval 

required for animals to recover from 

TTS and might result in pathological 

and pre-pathological states that would 

be as significant as behavioral responses 

to TTS. 

Behavioral Disturbance 

Behavioral responses to sound are 

highly variable and context-specific. 

Exposure of marine mammals to sound 

sources can result in (but is not limited 

to) the following observable responses: 

Increased alertness; orientation or 

attraction to a sound source; vocal 

modifications; cessation of feeding; 

cessation of social interaction; alteration 

of movement or diving behavior; habitat 

abandonment (temporary or permanent); 

and, in severe cases, panic, flight, 

stampede, or stranding, potentially 

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

Many different variables can 

influence an animal’s perception of and 

response to (nature and magnitude) an 

acoustic event. An animal’s prior 

experience with a sound type affects 

whether it is less likely (habituation) or 

more likely (sensitization) to respond to 

certain sounds in the future (animals 

can also be innately pre-disposed to 

respond to certain sounds in certain 

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

the sound itself, the perceived nearness 

of the sound, bearing of the sound 

(approaching vs. retreating), similarity 

of a sound to biologically relevant 

sounds in the animal’s environment 

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

conspecifics), and familiarity of the 

sound may affect the way an animal 

responds to the sound (Southall et al., 

2007). Individuals (of different age, 

gender, reproductive status, etc.) among 

most populations will have variable 

hearing capabilities, and differing 

behavioral sensitivities to sounds that 

will be affected by prior conditioning, 

experience, and current activities of 

those individuals. Often, specific 

acoustic features of the sound and 

contextual variables (i.e., proximity, 

duration, or recurrence of the sound or 

the current behavior that the marine 

mammal is engaged in or its prior 

experience), as well as entirely separate 

factors such as the physical presence of 

a nearby vessel, may be more relevant 

to the animal’s response than the 

received level alone. 

There are few empirical studies of 

avoidance responses of free-living 

cetaceans to mid-frequency sonars. 

Much more information is available on 

the avoidance responses of free-living 

cetaceans to other acoustic sources, like 

seismic airguns and low frequency 

sonar, than mid-frequency active sonar. 

Richardson et al., (1995) noted that 

avoidance reactions are the most 

obvious manifestations of disturbance in 

marine mammals. 

Behavioral Responses (Southall et al. 

(2007)) 

Southall et al., (2007) reports the 

results of the efforts of 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 anthropogenic 

sound with the goal of proposing 

exposure criteria for certain effects. This 

compilation of literature is very 

valuable, though Southall et al. notes 

that not all data is equal: Some have 

poor statistical power, insufficient 

controls, and/or limited information on 

received levels, background noise, and 

32278 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

other potentially important contextual 

variables; such data were reviewed and 

sometimes used for qualitative 

illustration, but were not included in 

the quantitative analysis for the criteria 

recommendations. 

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

the purposes of analyzing responses of 

marine mammals to anthropogenic 

sound and developing criteria, the 

authors differentiate between single 

pulse sounds, multiple pulse sounds, 

and non-pulse sounds. Sonar signal is 

considered a non-pulse sound. Southall 

et al., (2007) summarize the reports 

associated with low, mid, and high 

frequency cetacean responses to nonpulse sounds in Appendix C of their 

report (incorporated by reference and 

summarized in the three paragraphs 

below). 

The reports that address responses of 

low frequency cetaceans to non-pulse 

sounds include data gathered in the 

field and related to several types of 

sound sources (of varying similarity to 

sonar signals) including: Vessel noise, 

drilling and machinery playback, low 

frequency M-sequences (sine wave with 

multiple phase reversals) playback, low 

frequency active sonar playback, drill 

vessels, Acoustic Thermometry of 

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

indicate no (or very limited) responses 

to received levels in the 90 to 120 dB 

re 1 micro Pa range and an increasing 

likelihood of avoidance and other 

behavioral effects in the 120 to 160 dB 

range. As mentioned earlier, however, 

contextual variables play a very 

important role in the reported 

responses, and the severity of effects are 

not linear when compared to received 

level. Also, few of the laboratory or field 

datasets had common conditions, 

behavioral contexts or sound sources, so 

it is not surprising that responses differ. 

The reports that address responses of 

mid-frequency cetaceans to non-pulse 

sounds include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to sonar signals) 

including: Pingers, drilling playbacks, 

vessel and ice-breaking noise, vessel 

noise, Acoustic Harassment Devices 

(AHDs), Acoustic Deterrent Devices 

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

bands and tones. Southall et al. were 

unable to come to a clear conclusion 

regarding these reports. In some cases, 

animals in the field showed significant 

responses to received levels between 90 

and 120 dB, while in other cases these 

responses were not seen in the 120 to 

150 dB range. The disparity in results 

was likely due to contextual variation 

and the differences between the results 

in the field and laboratory data (animals 

responded at lower levels in the field). 

The reports that address the responses 

of high frequency cetaceans to nonpulse sounds include data gathered both 

in the field and the laboratory and 

related to several different sound 

sources (of varying similarity to sonar 

signals) including: Acoustic harassment 

devices, Acoustical Telemetry of Ocean 

Climate (ATOC), wind turbine, vessel 

noise, and construction noise. However, 

no conclusive results are available from 

these reports. In some cases, high 

frequency cetaceans (harbor porpoises) 

are observed to be quite sensitive to a 

wide range of human sounds at very low 

exposure RLs (90 to 120 dB). All 

recorded exposures exceeding 140 dB 

produced profound and sustained 

avoidance behavior in wild harbor 

porpoises (Southall et al., 2007). 

In addition to summarizing the 

available data, the authors of Southall et 

al. (2007) developed a severity scaling 

system with the intent of ultimately 

being able to assign some level of 

biological significance to a response. 

Following is a summary of their scoring 

system: A comprehensive list of the 

behaviors associated with each score 

may be found in the report: 

• 0–3 (Minor and/or brief behaviors) 

includes, but is not limited to: No 

response; minor changes in speed or 

locomotion (but with no avoidance); 

individual alert behavior; minor 

cessation in vocal behavior; minor 

changes in response to trained behaviors 

(in laboratory). 

• 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival) includes, but 

is not limited to: Moderate changes in 

speed, direction, or dive profile; brief 

shift in group distribution; prolonged 

cessation or modification of vocal 

behavior (duration > duration of sound), 

minor or moderate individual and/or 

group avoidance of sound; brief 

cessation of reproductive behavior; or 

refusal to initiate trained tasks (in 

laboratory). 

• 7–9 (Behaviors considered likely to 

affect the aforementioned vital rates) 

includes, but are not limited to: 

Extensive of prolonged aggressive 

behavior; moderate, prolonged or 

significant separation of females and 

dependent offspring with disruption of 

acoustic reunion mechanisms; long-term 

avoidance of an area; outright panic, 

stampede, stranding; threatening or 

attacking sound source (in laboratory). 

In Table 7 we have summarized the 

scores that Southall et al. (2007) 

assigned to the papers that reported 

behavioral responses of low frequency 

cetaceans, mid-frequency cetaceans, and 

high frequency cetaceans to non-pulse 

sounds. 

TABLE 7—DATA COMPILED FROM THREE TABLES FROM SOUTHALL ET AL. (2007) INDICATING WHEN MARINE MAMMALS

(LOW-FREQUENCY CETACEAN = L, MID-FREQUENCY CETACEAN = M, AND HIGH-FREQUENCY CETACEAN = H) WERE

REPORTED AS HAVING A BEHAVIORAL RESPONSE OF THE INDICATED SEVERITY TO A NON-PULSE SOUND OF THE INDICATED RECEIVED LEVEL

[As discussed in the text, responses are highly variable and context specific] 

Received RMS sound pressure 

level (dB re 1 microPa) 

Response Score 

80 to 

<90 

90 to < 

100 

100 to < 

110 

110 to 

<120 

120 to < 

130 

130 to < 

140 

140 to < 

150 

150 to < 

160 

160 to < 

170 

170 to < 

180 

180 to < 

190 

190 to < 

200 

9 ................................................ .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. ..............

8 ................................................ .............. M M .............. M .............. M .............. .............. .............. M M 

7 ................................................ .............. .............. .............. .............. .............. L L .............. .............. .............. .............. ..............

6 ................................................ H L/H L/H L/M/H L/M/H L L/H H M/H M .............. ..............

5 ................................................ .............. .............. .............. .............. M .............. .............. .............. .............. .............. .............. ..............

4 ................................................ .............. .............. H L/M/H L/M .............. L .............. .............. .............. .............. ..............

3 ................................................ .............. M L/M L/M M .............. .............. .............. .............. .............. .............. ..............

2 ................................................ .............. .............. L L/M L L L .............. .............. .............. .............. ..............

1 ................................................ .............. .............. M M M .............. .............. .............. .............. .............. .............. ..............

0 ................................................ L/H L/H L/M/H L/M/H L/M/H L M .............. .............. .............. M M 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32279 

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 

exist for terrestrial species from 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 (such as 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 as foraging. These costs 

have been documented best in foraging 

animals, where vigilance has been 

shown to substantially reduce feeding 

rates (Saino, 1994; Beauchamp and 

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

Animals will spend more time being 

vigilant, which may translate to less 

time foraging or resting, when 

disturbance stimuli approach them 

more directly, remain at closer 

distances, have a greater group size (for 

example, multiple surface vessels), or 

when they co-occur with times that an 

animal perceives increased risk (for 

example, when they are giving birth or 

accompanied by a calf). Most of the 

published literature, however, suggests 

that direct approaches will increase the 

amount of time animals will dedicate to 

being vigilant. For example, bighorn 

sheep and Dall’s sheep dedicated more 

time being vigilant, and less time resting 

or foraging, when aircraft made direct 

approaches over them (Frid, 2001; 

Stockwell et al., 1991). 

Several authors have established that 

long-term and intense disturbance 

stimuli can cause population declines 

by reducing the body condition of 

individuals that have been disturbed, 

followed by reduced reproductive 

success, reduced survival, or both (Daan 

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

1983). For example, Madsen (1994) 

reported that pink-footed geese (Anser 

brachyrhynchus) in undisturbed habitat 

gained body mass and had about a 46- 

percent reproductive success compared 

with geese in disturbed habitat (being 

consistently scared off the fields on 

which they were foraging) which did 

not gain mass and had a 17 percent 

reproductive success. Similar 

reductions in reproductive success have 

been reported for mule deer (Odocoileus 

hemionus) disturbed by all-terrain 

vehicles (Yarmoloy et al., 1988), caribou 

disturbed by seismic exploration blasts 

(Bradshaw et al., 1998), caribou 

disturbed by low-elevation military 

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

disturbed by low-elevation jet flights 

(Harrington and Veitch, 1992). 

Similarly, a study of elk (Cervus 

elaphus) that were disturbed 

experimentally by pedestrians 

concluded that the ratio of young to 

mothers was inversely related to 

disturbance rate (Phillips and 

Alldredge, 2000). 

The primary mechanism by which 

increased vigilance and disturbance 

appear to affect the fitness of individual 

animals is by disrupting an animal’s 

time budget and, as a result, reducing 

the time they might spend foraging and 

resting (which increases an animal’s 

activity rate and energy demand). For 

example, a study of grizzly bears (Ursus 

horribilis) reported that bears disturbed 

by hikers reduced their energy intake by 

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

min), and spent energy fleeing or acting 

aggressively toward hikers (White et al., 

1999). 

On a related note, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing, on a 

diel cycle (24-hr cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

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

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

Stranding and Mortality 

When a live or dead marine mammal 

swims or floats onto shore and becomes 

‘‘beached’’ or incapable of returning to 

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

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

2002; Geraci and Lounsbury, 2005; 

NMFS, 2007). 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 

stranding are unknown (Geraci et al., 

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

Best, 1982). Numerous studies suggest 

that the physiology, behavior, habitat 

relationships, age, or condition of 

cetaceans may cause them to strand or 

might pre-dispose them to strand when 

exposed to these phenomena. These 

suggestions are consistent with the 

conclusions of numerous other studies 

that have demonstrated that 

combinations of dissimilar stressors 

commonly combine to kill an animal or 

dramatically reduce its fitness, even 

though one exposure without the other 

does not produce the same result 

(Chroussos, 2000; Creel, 2005; DeVries 

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

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

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

2004). 

Several sources have published lists 

of mass stranding events of cetaceans 

during attempts to identify relationships 

32280 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

between those stranding events and 

military sonar (Hildebrand, 2004; IWC, 

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

based on a review of stranding records 

between 1960 and 1995, the 

International Whaling Commission 

(IWC, 2005) identified ten mass 

stranding events of Cuvier’s beaked 

whales that had been reported and one 

mass stranding of four Baird’s beaked 

whales (Berardius bairdii). The IWC 

concluded that, out of eight stranding 

events reported from the mid-1980s to 

the summer of 2003, seven had been 

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

been associated with the use of low 

frequency sonar, and the remaining 

stranding event had been associated 

with the use of seismic airguns. 

Most of the stranding events reviewed 

by the IWC involved beaked whales. A 

mass stranding of Cuvier’s beaked 

whales in the eastern Mediterranean Sea 

occurred in 1996 (Frantzis, 1998) and 

mass stranding events involving 

Gervais’ beaked whales, Blainville’s 

beaked whales, and Cuvier’s beaked 

whales occurred off the coast of the 

Canary Islands in the late 1980s 

(Simmonds and Lopez-Jurado, 1991). 

The stranding events that occurred in 

the Canary Islands and Kyparissiakos 

Gulf in the late 1990s and the Bahamas 

in 2000 have been the most intensively 

studied mass stranding events and have 

been associated with naval maneuvers 

that were using sonar. 

Between 1960 and 2006, 48 strandings 

(68 percent) involved beaked whales, 3 

(4 percent) involved dolphins, and 14 

(20 percent) involved other whale 

species. Cuvier’s beaked whales were 

involved in the greatest number of these 

events (48 strandings or 68 percent), 

followed by sperm whales (7 strandings 

or 10 percent), and Blainville’s and 

Gervais’ beaked whales (4 each or 6 

percent). Naval activities that might 

have involved active sonar are reported 

to have coincided with 9 (13 percent) or 

10 (14 percent) of those stranding 

events. Between the mid-1980s and 

2003 (the period reported by the IWC), 

we identified reports of 44 mass 

cetacean stranding events of which at 

least 7 were coincident with naval 

exercises that were using mid-frequency 

sonar. A list of stranding events that are 

considered to be associated with MFAS 

is presented in the proposed rulemaking 

for the Navy’s training in the Hawaii 

Range Complex (73 FR 35510; June 23, 

2008). 

Association Between Mass Stranding 

Events and Exposure to MFAS 

Several authors have noted 

similarities between some of these mass 

stranding incidents: They occurred in 

islands or archipelagoes with deep 

water nearby, several appeared to have 

been associated with acoustic 

waveguides like surface ducting, and 

the sound fields created by vessels 

transmitting mid-frequency sonar (Cox 

et al., 2006, D’Spain et al., 2006). 

However, only low intensity sonars and 

low intensity acoustic sources are 

proposed for the Keyport Range 

Complex RDT&E and range extension 

activities, and no powerful MFAS such 

as the 53C series tactical sonar would be 

used for these activities; therefore, their 

zones of influence are much smaller 

compared to these highest powered 

surface vessel sources, and animals can 

be more easily detected in these smaller 

areas, thereby increasing the probability 

that sonar operations can be modified to 

reduce the risk of injury to marine 

mammals. In addition, the proposed test 

events differ significantly from major 

Navy exercises and training, which 

involve multi-vessel training scenarios 

using the AN/SQS–53/56 source that 

have been associated with past 

strandings. Therefore, their zones of 

influence are much smaller and are less 

likely to affect marine mammals. 

Although Cuvier’s beaked whales have 

been the most common species involved 

in these stranding events (81 percent of 

the total number of stranded animals), 

other beaked whales (including 

Mesoplodon europeaus, M. densirostris, 

and Hyperoodon ampullatus) comprise 

14 percent of the total. Other species 

(Stenella coeruleoalba, Kogia breviceps 

and Balaenoptera acutorostrata) have 

stranded, but in much lower numbers 

and less consistently than beaked 

whales. 

Based on the available evidence, 

however, we cannot determine whether 

(a) Cuvier’s beaked whale is more prone 

to injury from high-intensity sound than 

other species, (b) their behavioral 

responses to sound make them more 

likely to strand, or (c) they are more 

likely to be exposed to mid-frequency 

active sonar than other cetaceans (for 

reasons that remain unknown). Because 

the association between active sonar 

(mid-frequency) exposures and marine 

mammal mass stranding events is not 

consistent—some marine mammals 

strand without being exposed to sonar 

and some sonar transmissions are not 

associated with marine mammal 

stranding events despite their cooccurrence—other risk factors or a 

grouping of risk factors probably 

contribute to these stranding events. 

Behaviorally Mediated Responses to 

HFAS/MFAS That May Lead to 

Stranding 

Although the confluence of Navy midfrequency active tactical sonar with the 

other contributory factors noted in the 

report was identified as the cause of the 

2000 Bahamas stranding event, the 

specific mechanisms that led to that 

stranding (or the others) are not 

understood, and there is uncertainty 

regarding the ordering of effects that led 

to the stranding. It is unclear whether 

beaked whales were directly injured by 

sound (acoustically mediated bubble 

growth, addressed above) prior to 

stranding or whether a behavioral 

response to sound occurred that 

ultimately caused the beaked whales to 

strand and be injured. 

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 startle 

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 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32281 

organs or interfere with normal 

physiological function (Cox et al., 2006; 

Rommel et al., 2006; Zimmer and 

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

that slow ascent rates from deep dives 

and long periods of time spent within 

50 m of the surface were typical for both 

Cuvier’s and Blainville’s beaked whales, 

the two species involved in mass 

strandings related to naval sonar. These 

two behavioral mechanisms may be 

necessary to purge excessive dissolved 

nitrogen concentrated in their tissues 

during their frequent long dives (Baird 

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

suggests that abnormally rapid ascents 

or premature dives in response to high 

intensity sonar could indirectly result in 

physical harm to the beaked whales, 

through the mechanisms described 

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

Because many species of marine 

mammals make repetitive and 

prolonged dives to great depths, it has 

long been assumed that marine 

mammals have evolved physiological 

mechanisms to protect against the 

effects of rapid and repeated 

decompressions. Although several 

investigators have identified 

physiological adaptations that may 

protect marine mammals against 

nitrogen gas supersaturation (alveolar 

collapse and elective circulation; 

Kooyman et al., 1972; Ridgway and 

Howard, 1979), Ridgway and Howard 

(1979) reported that bottlenose dolphins 

that were trained to dive repeatedly had 

muscle tissues that were substantially 

supersaturated with nitrogen gas. 

Houser et al. (2001) used these data to 

model the accumulation of nitrogen gas 

within the muscle tissue of other marine 

mammal species and concluded that 

cetaceans that dive deep and have slow 

ascent or descent speeds would have 

tissues that are more supersaturated 

with nitrogen gas than other marine 

mammals. Based on these data, Cox et 

al. (2006) hypothesized that a critical 

dive sequence might make beaked 

whales more prone to stranding in 

response to acoustic exposures. The 

sequence began with (1) very deep (to 

depths as deep as 2 kilometers) and long 

(as long as 90 minutes) foraging dives 

with (2) relatively slow, controlled 

ascents, followed by (3) a series of 

‘‘bounce’’ dives between 100 and 400 m 

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

Zimmer and Tyack, 2007). They 

concluded that acoustic exposures that 

disrupted any part of this dive sequence 

(for example, causing beaked whales to 

spend more time at surface without the 

bounce dives that are necessary to 

recover from the deep dive) could 

produce excessive levels of nitrogen 

supersaturation in their tissues, leading 

to gas bubble and emboli formation that 

produces pathologies similar to 

decompression sickness. 

Recently, Zimmer and Tyack (2007) 

modeled nitrogen tension and bubble 

growth in several tissue compartments 

for several hypothetical dive profiles 

and concluded that repetitive shallow 

dives (defined as a dive where depth 

does not exceed the depth of alveolar 

collapse, approximately 72 m (236 ft) for 

Ziphius), perhaps as a consequence of 

an extended avoidance reaction to sonar 

sound, could pose a risk for 

decompression sickness and that this 

risk should increase with the duration 

of the response. Their models also 

suggested that unrealistically more 

rapid ascent rates from normal dive 

behaviors are unlikely to result in 

supersaturation to the extent that bubble 

formation would be expected. Tyack et 

al. (2006) suggested that emboli 

observed in animals exposed to 

midfrequency range sonar (Jepson et al., 

2003; Fernandez et al., 2005) could stem 

from a behavioral response that involves 

repeated dives shallower than the depth 

of lung collapse. Given that nitrogen gas 

accumulation is a passive process (i.e., 

nitrogen is metabolically inert), a 

bottlenose dolphin was trained to 

repetitively dive a profile predicted to 

elevate nitrogen saturation to the point 

that nitrogen bubble formation was 

predicted to occur. However, inspection 

of the vascular system of the dolphin via 

ultrasound did not demonstrate the 

formation of asymptomatic nitrogen gas 

bubbles (Houser et al., 2007). 

If marine mammals respond to a Navy 

vessel that is transmitting active sonar 

in the same way that they might 

respond to a predator, their probability 

of flight responses should increase 

when they perceive that Navy vessels 

are approaching them directly, because 

a direct approach may convey detection 

and intent to capture (Burger and 

Gochfeld, 1981; 1990; Cooper, 1997; 

1998). The probability of flight 

responses should also increase as 

received levels of active sonar increase 

(and the vessel is, therefore, closer) and 

as vessel speeds increase (that is, as 

approach speeds increase). For example, 

the probability of flight responses in 

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

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

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

bernic nigricans) and Canada geese (B. 

canadensis) increased as a helicopter or 

fixed-wing aircraft approached groups 

of these animals more directly (Ward et 

al., 1999). Bald eagles (Haliaeetus 

leucocephalus) perched on trees 

alongside a river were also more likely 

to flee from a paddle raft when their 

perches were closer to the river or were 

closer to the ground (Steidl and 

Anthony, 1996). 

Despite the many theories involving 

bubble formation (both as a direct cause 

of injury (see Acoustically Mediated 

Bubble Growth Section) and an indirect 

cause of stranding (see Behaviorally 

Mediated Bubble Growth Section), 

Southall et al., (2007) summarizes that 

scientific disagreement or complete lack 

of information exists regarding the 

following important points: (1) Received 

acoustical exposure conditions for 

animals involved in stranding events; 

(2) pathological interpretation of 

observed lesions in stranded marine 

mammals; (3) acoustic exposure 

conditions required to induce such 

physical trauma directly; (4) whether 

noise exposure may cause behavioral 

reactions (such as atypical diving 

behavior) that secondarily cause bubble 

formation and tissue damage; and (5) 

the extent to which the post mortem 

artifacts introduced by decomposition 

before sampling, handling, freezing, or 

necropsy procedures affect 

interpretation of observed lesions. 

Unlike those past stranding events 

that were coincident with military midfrequency sonar use and were 

speculated to most likely have been 

caused by exposure to the sonar, those 

naval exercises involved multiple 

vessels in waters with steep bathymetry 

where deep channeling of sonar signals 

was more likely. The proposed RDT&E 

activities within the Keyport Range 

Complex Extension would not involve 

multi-vessel operations, would not use 

powerful sonar such as the AN/SQQ– 

53C/56 MFAS, and the bathymetry bears 

no similarity to where those mass 

strandings occurred (e.g., Greece (1996); 

the Bahamas (2000); Madeira (2000); 

Canary Islands (2002); Hanalei Bay, 

Kaua’i, Hawaii (2004); and Spain 

(2006)). Consequently, because of the 

nature of the Keyport Range operations 

(which involve less powerful active 

sonar (MFAS/HFAS) and other sound 

sources, and no high-speed, multi-vessel 

training scenarios) and the fact that the 

Keyport Range Complex Extension has 

none of the bathymetric features that 

have been associated with mass 

strandings in the past, NMFS concludes 

it is unlikely that sonar use would result 

in a stranding event in the Keyport 

Range Complex region. 

Estimated Take of Marine Mammals 

With respect to the MMPA, NMFS’s 

effects assessment serves four primary 

purposes: (1) To prescribe the 

permissible methods of taking (i.e., 

Level B Harassment (behavioral 

32282 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

harassment), Level A harassment 

(injury), or mortality, including an 

identification of the number and types 

of take that could occur by Level A or 

B harassment or mortality) and to 

prescribe other means of effecting the 

least practicable adverse impact on such 

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

mitigation); (2) to determine whether 

the specified activity will have a 

negligible impact on the affected species 

or stocks of marine mammals (based on 

the likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival); (3) to 

determine whether the specified activity 

will have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (however, 

there are no subsistence communities 

that would be affected in the Keyport 

Range Complex Study Area, so this 

determination is inapplicable for this 

rulemaking); and (4) to prescribe 

requirements pertaining to monitoring 

and reporting. 

In the Potential Impacts to Marine 

Mammal Species section, NMFS 

identifies the lethal responses, physical 

trauma, sensory impairment (permanent 

and temporary threshold shifts and 

acoustic masking), physiological 

responses (particular stress responses), 

and behavioral responses that could 

potentially result from exposure to 

active acoustic sources (e.g., powerful 

sonar). In this section, we will relate the 

potential effects to marine mammals 

from active acoustic sources to the 

MMPA regulatory definitions of Level A 

and Level B Harassment and attempt to 

quantify the effects that might occur 

from the specific RDT&E activities that 

the Navy is proposing in the Keyport 

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 Impacts to 

Marine Mammals Species 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 active 

acoustic sources, is considered Level B 

Harassment. Some of the lower level 

physiological stress responses will also 

likely co-occur with the predicted 

harassments, although these responses 

are more difficult to detect and fewer 

data exist relating these responses to 

specific received levels of sound. When 

Level B Harassment is predicted based 

on estimated behavioral responses, 

those takes may have a stress-related 

physiological component as well. 

In the effects section above, we 

described the Southall et al., (2007) 

severity scaling system and listed some 

examples of the three broad categories 

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

behaviors); 4–6 (Behaviors with higher 

potential to affect foraging, 

reproduction, or survival); 7–9 

(Behaviors considered likely to affect 

the aforementioned vital rates). 

Generally speaking, MMPA Level B 

Harassment, as defined in this 

document, would include the behaviors 

described in the 7–9 category, and a 

subset, dependent on context and other 

considerations, of the behaviors 

described in the 4–6 categories. 

Behavioral harassment generally does 

not include behaviors ranked 0–3 in 

Southall et al., (2007). 

Acoustic Masking and 

Communication Impairment—Acoustic 

masking is considered Level B 

Harassment, as it can disrupt natural 

behavioral patterns by interrupting or 

limiting the marine mammal’s receipt or 

transmittal of important information or 

environmental cues. 

TTS—As discussed previously, TTS 

can affect how an animal behaves in 

response to the environment, including 

conspecifics, predators, and prey. The 

following physiological mechanisms are 

thought to play a role in inducing 

auditory fatigue: Effects to sensory hair 

cells in the inner ear that reduce their 

sensitivity, modification of the chemical 

environment within the sensory cells, 

residual muscular activity in the middle 

ear, displacement of certain inner ear 

membranes, increased blood flow, and 

post-stimulatory reduction in both 

efferent and sensory neural output. 

Ward (1997) suggested that when these 

effects result in TTS rather than PTS, 

they are within the normal bounds of 

physiological variability and tolerance 

and do not represent a physical injury. 

Additionally, Southall et al. (2007) 

indicate that although PTS is a tissue 

injury, TTS is not because the reduced 

hearing sensitivity following exposure 

to intense sound results primarily from 

fatigue, not loss, of cochlear hair cells 

and supporting structures and is 

reversible. Accordingly, NMFS classifies 

TTS (when resulting from exposure to 

active acoustic sources) as Level B 

Harassment, not Level A Harassment 

(injury). 

Level A Harassment 

Of the potential effects that were 

described in the Potential Impacts to 

Marine Mammal Species section, 

following are the types of effects that 

fall into the Level A Harassment 

category: 

PTS—PTS (resulting either from 

exposure to active acoustic sources) is 

irreversible and considered an injury. 

PTS results from exposure to intense 

sounds that cause a permanent loss of 

inner or outer cochlear hair cells or 

exceed the elastic limits of certain 

tissues and membranes in the middle 

and inner ears and results in changes in 

the chemical composition of the inner 

ear fluids. 

Acoustically Mediated Bubble 

Growth—A few theories suggest ways in 

which gas bubbles become enlarged 

through exposure to intense sounds 

(HFAS/MFAS) to the point where tissue 

damage results. In rectified diffusion, 

exposure to a sound field would cause 

bubbles to increase in size. Alternately, 

bubbles could be destabilized by high 

level sound exposures such that bubble 

growth then occurs through static 

diffusion of gas out of the tissues. Tissue 

damage from either of these processes 

would be considered an injury. 

Behaviorally Mediated Bubble 

Growth—Several authors suggest 

mechanisms in which marine mammals 

could behaviorally respond to exposure 

to HFAS/MFAS by altering their dive 

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.). 

Acoustic Take Criteria for Naval Sonar 

For the purposes of an MMPA 

incidental take authorization, three 

types of take are identified: Level B 

harassment; Level A harassment; and 

mortality (or serious injury leading to 

mortality). The categories of marine 

mammal responses (physiological and 

behavioral) that fall into the two 

harassment categories were described in 

the previous section. 

Because the physiological and 

behavioral responses of the majority of 

the marine mammals exposed to HFAS/ 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32283 

MFAS cannot be detected or measured, 

a method is needed to estimate the 

number of individuals that will be 

taken, pursuant to the MMPA, based on 

the proposed action. To this end, NMFS 

uses acoustic criteria that estimate the 

received level (when exposed to HFAS/ 

MFAS) at which Level B or Level A 

harassment would occur. The acoustic 

criteria for HFAS/MFAS are discussed 

below. 

Because relatively few applicable data 

exist to support acoustic criteria 

specifically for HFAS, and it is 

suspected that the majority of the 

adverse effects are from the MFAS due 

to their larger impact ranges, NMFS will 

apply the criteria developed for the 

MFAS to the HFAS as well. 

NMFS utilizes three acoustic criteria 

for HFAS/MFAS: PTS (injury—Level A 

Harassment), behavioral harassment 

from TTS, and sub-TTS (Level B 

Harassment). Because the TTS and PTS 

criteria are derived similarly and the 

PTS criteria was extrapolated from the 

TTS data, the TTS and PTS acoustic 

criteria will be presented first, before 

the behavioral criteria. For more 

information regarding these criteria, 

please see the Navy’s LOA application 

for the Keyport Range Complex RDT&E 

and range extension activities. 

Level B Harassment Threshold (TTS) 

As mentioned above, behavioral 

disturbance, acoustic masking, and TTS 

are all considered Level B Harassment. 

Marine mammals would usually be 

behaviorally disturbed at lower received 

levels than those at which they would 

likely sustain TTS, so the levels at 

which behavioral disturbance is likely 

to occur are considered the onset of 

Level B Harassment. The behavioral 

responses of marine mammals to sound 

are variable, context specific, and, 

therefore, difficult to quantify (see Risk 

Function section, below). TTS is a 

physiological effect that has been 

studied and quantified in laboratory 

conditions. NMFS also uses an acoustic 

criteria to estimate the number of 

marine mammals that might sustain 

TTS incidental to a specific activity (in 

addition to the behavioral criteria). 

A number of investigators have 

measured TTS in marine mammals. 

These studies measured hearing 

thresholds in trained marine mammals 

before and after exposure to intense 

sounds. The existing cetacean TTS data 

are summarized in the following bullets. 

• Schlundt et al. (2000) reported the 

results of TTS experiments conducted 

with 5 bottlenose dolphins and 2 

belugas exposed to 1-second tones. This 

paper also includes a reanalysis of 

preliminary TTS data released in a 

technical report by Ridgway et al. 

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

kHz, sound pressure levels (SPLs) 

necessary to induce measurable 

amounts (6 dB or more) of TTS were 

between 192 and 201 dB re 1 microPa 

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

The mean exposure SPL and EL for 

onset-TTS were 195 dB re 1 microPa 

and 195 dB re 1 microPa2-s, 

respectively. 

• Finneran et al. (2001, 2003, 2005) 

described TTS experiments conducted 

with bottlenose dolphins exposed to 3- 

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

8 seconds. Small amounts of TTS (3 to 

6 dB) were observed in one dolphin 

after exposure to ELs between 190 and 

204 dB re 1 microPa2-s. These results 

were consistent with the data of 

Schlundt et al. (2000) and showed that 

the Schlundt et al. (2000) data were not 

significantly affected by the masking 

sound used. These results also 

confirmed that, for tones with different 

durations, the amount of TTS is best 

correlated with the exposure EL rather 

than the exposure SPL. 

• Nachtigall et al. (2003) measured 

TTS in a bottlenose dolphin exposed to 

octave-band sound centered at 7.5 kHz. 

Nachtigall et al. (2003a) reported TTSs 

of about 11 dB measured 10 to 15 

minutes after exposure to 30 to 50 

minutes of sound with SPL 179 dB re 

1 microPa (EL about 213 dB re 

microPa2-s). No TTS was observed after 

exposure to the same sound at 165 and 

171 dB re 1 microPa. Nachtigall et al. 

(2004) reported TTSs of around 4 to 8 

dB 5 minutes after exposure to 30 to 50 

minutes of sound with SPL 160 dB re 

1 microPa (EL about 193 to 195 dB re 

1 microPa2-s). The difference in results 

was attributed to faster post exposure 

threshold measurement—TTS may have 

recovered before being detected by 

Nachtigall et al. (2003). These studies 

showed that, for long duration 

exposures, lower sound pressures are 

required to induce TTS than are 

required for short-duration tones. 

• Finneran et al. (2000, 2002) 

conducted TTS experiments with 

dolphins and belugas exposed to 

impulsive sounds similar to those 

produced by distant underwater 

explosions and seismic waterguns. 

These studies showed that, for very 

short-duration impulsive sounds, higher 

sound pressures were required to 

induce TTS than for longer-duration 

tones. 

• Mooney et al. (2009) exposed a 

bottlenose dolphin with a ‘‘typical’’ 

mid-frequency naval sonar signal (two 

down sweeps of 0.5 s each separated by 

a 0.5 s gap, fundamental frequency 

approximately 3–4 kHz with multiple 

harmonics) recorded within the Puget 

Sound, Washington. Successive threeping blocks, each block spaced 24 s 

apart, were used to simulate a ‘‘typical’’ 

mid-frequency sonar application. To 

evaluate TTS, hearing thresholds for a 

5.6 kHz tone were measured before and 

after noise exposure using the 

physiological method of auditory 

evoked potentials. Sonar SPLs were 

gradually increased up to 203 dB SPL 

(rms) (measured at the location of the 

dolphin’s ear) for individual pings. The 

ping number was then increased over 

multiple exposure sessions until a 

threshold shift was induced. Results 

showed that only the five blocks of 

sonar pings, presenting an SPL of 203 

dB (SEL of 214 dB re 1 microPa2-s), 

reliably induced shifts for three 

consecutive research sessions. 

• 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 (the level above its 

hearing threshold) 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, expressed 

in SELs) for HFAS/MFAS are as follows: 

• Cetaceans—195 dB re 1 microPa2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al., 2007)). 

• Pinnipeds: 

—Harbor Seals (and closely related 

species)—183 dB re 1 microPa2-s 

—Northern Elephant Seals (and closely 

related species)—204 dB re 1 

microPa2-s 

—California Sea Lions (and closely 

related species)—206 dB re 1 

microPa2-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 Keyport Range 

Complex LOA application. 

32284 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

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 (expressed in 

SELs): 

• Cetaceans—215 dB re 1 microPa2-s 

(based on mid-frequency cetaceans—no 

published data exist on auditory effects 

of noise in low or high frequency 

cetaceans (Southall et al., 2007)). 

• Pinnipeds: 

—Harbor Seals (and closely related 

species)—203 dB re 1 microPa2-s 

—Northern Elephant Seals (and closely 

related species)—224 dB re 1 

microPa2-s 

—California Sea Lions (and closely 

related species)—226 dB re 1 

microPa2-s 

These criteria are based on a 20 dB 

increase in SEL over that required for 

onset-TTS. Extrapolations from 

terrestrial mammal data indicate that 

PTS occurs at 40 dB or more of TS, and 

that TS growth occurs at a rate of 

approximately 1.6 dB TS per dB 

increase in EL. There is a 34-dB TS 

difference between onset-TTS (6 dB) 

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

animal would require approximately 20- 

dB of additional exposure (34 dB 

divided by 1.6 dB) above onset-TTS to 

reach PTS. A detailed description of 

how TTS criteria were derived from the 

results of the above studies may be 

found in Chapter 3 of Southall et al. 

(2007), as well as the Navy’s Keyport 

Range Complex LOA application. 

Southall et al. (2007) recommend a 

precautionary dual criteria for TTS (230 

dB re 1 microPa (SPL) in addition to 215 

re 1 microPa2-s (SEL)) to account for the 

potentially damaging transients 

embedded within non-pulse exposures. 

However, in the case of HFAS/MFAS, 

the distance at which an animal would 

receive 215 (SEL) is farther from the 

source than the distance at which they 

would receive 230 (SPL) and therefore, 

it is not necessary to consider 230 dB. 

We note here that behaviorally 

mediated injuries (such as those that 

have been hypothesized as the cause of 

some beaked whale strandings) could 

potentially occur in response to 

received levels lower than those 

believed to directly result in tissue 

damage. As mentioned previously, data 

to support a quantitative estimate of 

these potential effects (for which the 

exact mechanism is not known and in 

which factors other than received level 

may play a significant role) do not exist. 

Level B Harassment Risk Function 

(Behavioral Harassment) 

The first MMPA authorization for take 

of marine mammals incidental to 

tactical active sonar was issued in 2006 

for Navy Rim of the Pacific training 

exercises in Hawaii. For that 

authorization, NMFS used 173 dB SEL 

as the criterion for the onset of 

behavioral harassment (Level B 

Harassment). This type of single number 

criterion is referred to as a step function, 

in which (in this example) all animals 

estimated to be exposed to received 

levels above 173 dB SEL would be 

predicted to be taken by Level B 

Harassment and all animals exposed to 

less than 173 dB SEL would not be 

taken by Level B Harassment. As 

mentioned previously, marine mammal 

behavioral responses to sound are 

highly variable and context specific 

(affected by differences in acoustic 

conditions; differences between species 

and populations; differences in gender, 

age, reproductive status, or social 

behavior; or the prior experience of the 

individuals), which does not support 

the use of a step function to estimate 

behavioral harassment. 

Unlike step functions, acoustic risk 

continuum functions (which are also 

called ‘‘exposure-response functions,’’ 

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

response functions’’ in other risk 

assessment contexts) allow for 

probability of a response that NMFS 

would classify as harassment to occur 

over a range of possible received levels 

(instead of one number) and assume that 

the probability of a response depends 

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

received level of sound) and that the 

probability of a response increases as 

the ‘‘dose’’ increases. The Navy and 

NMFS have previously used acoustic 

risk functions to estimate the probable 

responses of marine mammals to 

acoustic exposures in the Navy FEISs on 

SURTASS LFA sonar (DoN, 2001c) and 

the North Pacific Acoustic Laboratory 

experiments conducted off the Island of 

Kauai (ONR, 2001). The specific risk 

functions used here were also used in 

the MMPA regulations and FEIS for 

Hawaii Range Complex (HRC), Southern 

California Range Complex (SOCAL), 

Atlantic Fleet Active Sonar Testing 

(AFAST), and the Naval Surface Warfare 

Center Panama City Division (NSWC 

PCD) mission activities. 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 methodology described below is 

based on surface ship acoustic sources. 

The NAVSEA NUWC Keyport Range 

does not utilize these sources in RDT&E 

activities. It should be noted though, 

that the sources methodology described 

below is utilized for the modeling of 

potential exposures to mid- and highfrequency active sonar. 

To assess the potential effects on 

marine mammals associated with active 

sonar used during training activity the 

Navy and NMFS applied a risk function 

that estimates the probability of 

behavioral responses that NMFS would 

classify as harassment for the purposes 

of the MMPA given exposure to specific 

received levels of MFA sonar. The 

mathematical function is derived from a 

solution in Feller (1968) as defined in 

the SURTASS LFA Sonar Final OEIS/ 

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

Supplemental SURTASS LFA Sonar EIS 

(DoN, 2007a), for the probability of MFA 

sonar risk for Level B behavioral 

harassment with input parameters 

modified by NMFS for MFA sonar for 

mysticetes and odontocetes (NMFS, 

2008). The same risk function and input 

parameters will be applied to high 

frequency active (HFA) (<10 kHz) 

sources until applicable data become 

available for high frequency sources. 

In order to represent a probability of 

risk, the function should have a value 

near zero at very low exposures, and a 

value near one for very high exposures. 

One class of functions that satisfies this 

criterion is cumulative probability 

distributions, a type of cumulative 

distribution function. In selecting a 

particular functional expression for risk, 

several criteria were identified: 

• The function must use parameters 

to focus discussion on areas of 

uncertainty; 

• The function should contain a 

limited number of parameters; 

• The function should be capable of 

accurately fitting experimental data; and 

• The function should be reasonably 

convenient for algebraic manipulations. 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32285 

As described in U.S. Department of 

the Navy (2001), the mathematical 

function below is adapted from a 

solution in Feller (1968). 

R =

L B

K

L B

K

A

2A

1

1

− ⎛ −

⎝

⎜ ⎞

⎠

⎟

− ⎛ −

⎝

⎜ ⎞

⎠

⎟

−

−

Where: 

R = Risk (0–1.0) 

L = Received level (dB re: 1 μPa) 

B = Basement received level = 120 dB re: 1 

μPa 

K = Received level increment above B where 

50 percent risk = 45 dB re: 1 μPa 

A = Risk transition sharpness parameter = 10 

(odontocetes) or 8 (mysticetes) 

In order to use this function to 

estimate the percentage of an exposed 

population that would respond in a 

manner that NMFS classifies as Level B 

harassment, based on a given received 

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

be identified. 

B Parameter (Basement)—The B 

parameter is the estimated received 

level below which the probability of 

disruption of natural behavioral 

patterns, such as migration, surfacing, 

nursing, breeding, feeding, or sheltering, 

to a point where such behavioral 

patterns are abandoned or significantly 

altered approaches zero for the HFAS/ 

MFAS risk assessment. At this received 

level, the curve would predict that the 

percentage of the exposed population 

that would be taken by Level B 

Harassment approaches zero. For HFAS/ 

MFAS, NMFS has determined that B = 

120 dB re 1 μPa (SPL). This level is 

based on a broad overview of the levels 

at which many species have been 

reported responding to a variety of 

sound sources. 

K Parameter (Representing the 50- 

Percent Risk Point)—The K parameter is 

based on the received level that 

corresponds to 50 percent risk, or the 

received level at which we believe 50 

percent of the animals exposed to the 

designated received level will respond 

in a manner that NMFS classifies as 

Level B Harassment. The K parameter (K 

= 45 dB) is based on three datasets in 

which marine mammals exposed to 

mid-frequency sound sources were 

reported to respond in a manner that 

NMFS would classify as Level B 

Harassment. There is widespread 

consensus that marine mammal 

responses to HFA/MFA sound signals 

need to be better defined using 

controlled exposure experiments (Cox et 

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

Navy is contributing to an ongoing 

behavioral response study in the 

Bahamas that is expected to provide 

some initial information on beaked 

whales, the species identified as the 

most sensitive to MFAS. NMFS is 

leading this international effort with 

scientists from various academic 

institutions and research organizations 

to conduct studies on how marine 

mammals respond to underwater sound 

exposures. Until additional data are 

available, however, NMFS and the Navy 

have determined that the following 

three data sets are most applicable for 

direct use in establishing the K 

parameter for the HFAS/MFAS risk 

function. These data sets, summarized 

below, represent the only known data 

that specifically relate altered 

behavioral responses (that NMFS would 

consider Level B Harassment) to 

exposure to HFAS/MFAS sources. 

Even though these data are considered 

the most representative of the proposed 

specified activities, and therefore the 

most appropriate on which to base the 

K parameter (which basically 

determines the midpoint) of the risk 

function, these data have limitations, 

which are discussed in Appendix C of 

the NAVSEA NUWC Keyport Range 

Complex Extension EIS/OEIS. 

1. Controlled Laboratory Experiments 

with Odontocetes (SSC Dataset)—Most 

of the observations of the behavioral 

responses of toothed whales resulted 

from a series of controlled experiments 

on bottlenose dolphins and beluga 

whales conducted by researchers at 

SSC’s facility in San Diego, California 

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

Finneran and Schlundt, 2004; Schlundt 

et al., 2000). In experimental trials 

(designed to measure TTS) with marine 

mammals trained to perform tasks when 

prompted, scientists evaluated whether 

the marine mammals performed these 

tasks when exposed to mid-frequency 

tones. Altered behavior during 

experimental trials usually involved 

refusal of animals to return to the site 

of the sound stimulus, but also included 

attempts to avoid an exposure in 

progress, aggressive behavior, or refusal 

to further participate in tests. 

Finneran and Schlundt (2004) 

examined behavioral observations 

recorded by the trainers or test 

coordinators during the Schlundt et al. 

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

2005) experiments. These included 

observations from 193 exposure sessions 

(fatiguing stimulus level > 141 dB re 

1microPa) conducted by Schlundt et al. 

(2000) and 21 exposure sessions 

conducted by Finneran et al. (2001, 

2003, 2005). The TTS experiments that 

supported Finneran and Schlundt 

(2004) are further explained below: 

• Schlundt et al. (2000) provided a 

detailed summary of the behavioral 

responses of trained marine mammals 

during TTS tests conducted at SSC San 

Diego with 1-sec tones and exposure 

frequencies of 0.4 kHz, 3 kHz, 10 kHz, 

20 kHz and 75 kHz. Schlundt et al. 

(2000) reported eight individual TTS 

experiments. The experiments were 

conducted in San Diego Bay. Because of 

the variable ambient noise in the bay, 

low-level broadband masking noise was 

used to keep hearing thresholds 

consistent despite fluctuations in the 

ambient noise. Schlundt et al. (2000) 

reported that ‘‘behavioral alterations,’’ 

or deviations from the behaviors the 

animals being tested had been trained to 

exhibit, occurred as the animals were 

exposed to increasing fatiguing stimulus 

levels. 

• Finneran et al. (2001, 2003, 2005) 

conducted two separate TTS 

experiments using 1-sec tones at 3 kHz. 

The test methods were similar to that of 

Schlundt et al. (2000) except the tests 

were conducted in a pool with very low 

ambient noise level (below 50 dB re 1 

microPa2/Hz), and no masking noise 

was used. In the first, fatiguing sound 

levels were increased from 160 to 201 

dB SPL. In the second experiment, 

fatiguing sound levels between 180 and 

200 dB SPL were randomly presented. 

Bottlenose dolphins exposed to 1-sec 

intense tones exhibited short-term 

changes in behavior above received 

sound levels of 178 to 193 dB re 1 

microPa (rms), and beluga whales did so 

at received levels of 180 to 196 dB and 

above. 

2. Mysticete Field Study (Nowacek et 

al., 2004)—The only available and 

applicable data relating mysticete 

responses to exposure to mid-frequency 

sound sources are 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 


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32286 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

alert signal were (a) to pique the 

mammalian auditory system with 

disharmonic signals that cover the 

whales’ estimated hearing range; (b) to 

maximize the signal to noise ratio 

(obtain the largest difference between 

background noise) and (c) to provide 

localization cues for the whale. The 

maximum source level used was 173 dB 

SPL. 

Nowacek et al. (2004) reported that 

five out of six whales exposed to the 

alert signal with maximum received 

levels ranging from 133 to 148 dB re 1 

microPa significantly altered their 

regular behavior and did so in identical 

fashion. Each of these five whales: (i) 

Abandoned their current foraging dive 

prematurely as evidenced by curtailing 

their ‘bottom time’; (ii) executed a 

shallow-angled, high power (i.e., 

significantly increased fluke stroke rate) 

ascent; (iii) remained at or near the 

surface for the duration of the exposure, 

an abnormally long surface interval; and 

(iv) spent significantly more time at 

subsurface depths (1–10 m) compared 

with normal surfacing periods, when 

whales normally stay within 1 m (1.1 

yd) of the surface. 

3. Odontocete Field Data (Haro 

Strait—USS SHOUP)—In May 2003, 

killer whales were observed exhibiting 

behavioral responses generally 

described as avoidance behavior while 

the U.S. Ship (USS) SHOUP was 

engaged in MFAS in the Haro Strait in 

the vicinity of Puget Sound, 

Washington. Those observations have 

been documented in three reports 

developed by Navy and NMFS (NMFS, 

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

2003). Although these observations were 

made in an uncontrolled environment, 

the sound field that may have been 

associated with the sonar operations 

was estimated using standard acoustic 

propagation models that were verified 

(for some but not all signals) based on 

calibrated in situ measurements from an 

independent researcher who recorded 

the sounds during the event. Behavioral 

observations were reported for the group 

of whales during the event by an 

experienced marine mammal biologist 

who happened to be on the water 

studying them at the time. The 

observations associated with the USS 

SHOUP provide the only data set 

available of the behavioral responses of 

wild, non-captive animals upon actual 

exposure to AN/SQS–53 sonar. 

U.S. Department of Commerce 

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

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

documented reconstruction of sound 

fields produced by USS SHOUP 

associated with the behavioral response 

of killer whales observed in Haro Strait. 

Observations from this reconstruction 

included an approximate closest 

approach time which was correlated to 

a reconstructed estimate of received 

level (which ranged from 150 to 180 dB) 

at an approximate whale location with 

a mean value of 169.3 dB SPL. 

Calculation of K Parameter—NMFS 

and the Navy used the mean of the 

following values to define the midpoint 

of the function: (1) The mean of the 

lowest received levels (185.3 dB) at 

which individuals responded with 

altered behavior to 3 kHz tones in the 

SSC data set; (2) the estimated mean 

received level value of 169.3 dB 

produced by the reconstruction of the 

USS SHOUP incident in which killer 

whales exposed to MFA sonar (range 

modeled possible received levels: 150 to 

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

maximum received levels at which 

Nowacek et al. (2004) observed 

significantly altered responses of right 

whales to the alert stimuli than to the 

control (no input signal) is 139.2 dB 

SPL. The arithmetic mean of these three 

mean values is 165 dB SPL. The value 

of K is the difference between the value 

of B (120 dB SPL) and the 50 percent 

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

A Parameter (Steepness)—NMFS 

determined that a steepness parameter 

(A)=10 is appropriate for odontocetes 

(except harbor porpoises) and pinnipeds 

and A=8 is appropriate for mysticetes. 

The use of a steepness parameter of 

A=10 for odontocetes (except harbor 

porpoises) for the HFAS/MFAS risk 

function was based on the use of the 

same value for the SURTASS LFA risk 

continuum, which was supported by a 

sensitivity analysis of the parameter 

presented in Appendix D of the 

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

concluded in the SURTASS FEIS/EIS, 

the value of A=10 produces a curve that 

has a more gradual transition than the 

curves developed by the analyses of 

migratory gray whale studies (Malme et 

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

SURTASS LFA Sonar EIS, Subchapters 

1.43, 4.2.4.3 and Appendix D, and 

NMFS, 2008). 

NMFS determined that a lower 

steepness parameter (A=8), resulting in 

a shallower curve, was appropriate for 

use with mysticetes and HFAS/MFAS. 

The Nowacek et al. (2004) dataset 

contains the only data illustrating 

mysticete behavioral responses to a midfrequency sound source. A shallower 

curve (achieved by using A=8) better 

reflects the risk of behavioral response 

at the relatively low received levels at 

which behavioral responses of right 

whales were reported in the Nowacek et 

al. (2004) data. Compared to the 

odontocete curve, this adjustment 

results in an increase in the proportion 

of the exposed population of mysticetes 

being classified as behaviorally harassed 

at lower RLs, such as those reported 

here and is supported by the only 

dataset currently available. 

Basic Application of the Risk 

Function—The risk function is used to 

estimate the percentage of an exposed 

population that is likely to exhibit 

behaviors that would qualify as 

harassment (as that term is defined by 

the MMPA applicable to military 

readiness activities, such as the Navy’s 

testing and research activities with 

HFA/MFA sonar) at a given received 

level of sound. For example, at 165 dB 

SPL (dB re 1 Pa rms), the risk (or 

probability) of harassment is defined 

according to this function as 50 percent, 

and Navy/NMFS applies that by 

estimating that 50 percent of the 

individuals exposed at that received 

level are likely to respond by exhibiting 

behavior that NMFS would classify as 

behavioral harassment. The risk 

function is not applied to individual 

animals, only to exposed populations. 

The data primarily used to produce 

the risk function (the K parameter) were 

compiled from four species that had 

been exposed to sound sources in a 

variety of different circumstances. As a 

result, the risk function represents a 

general relationship between acoustic 

exposures and behavioral responses that 

is then applied to specific 

circumstances. That is, the risk function 

represents a relationship that is deemed 

to be generally true, based on the 

limited, best-available science, but may 

not be true in specific circumstances. In 

particular, the risk function, as currently 

derived, treats the received level as the 

only variable that is relevant to a marine 

mammal’s behavioral response. 

However, we know that many other 

variables—the marine mammal’s 

gender, age, and prior experience, the 

activity it is engaged in during an 

exposure event, its distance from a 

sound source, the number of sound 

sources, and whether the sound sources 

are approaching or moving away from 

the animal—can be critically important 

in determining whether and how a 

marine mammal will respond to a sound 

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

that are currently available do not allow 

for incorporation of these other 

variables in the current risk functions; 

however, the risk function represents 

the best use of the data that are available 

(Figure 1). 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32287 

As more specific and applicable data 

become available for HFAS/MFAS 

sources, NMFS can use these data to 

modify the outputs generated by the risk 

function to make them more realistic. 

Ultimately, data may exist to justify the 

use of additional, alternate, or 

multivariate functions. For example, as 

mentioned previously, the distance from 

the sound source and whether it is 

perceived as approaching or moving 

away can affect the way an animal 

responds to a sound (Wartzok et al., 

2003). 

Specific Consideration for Harbor 

Porpoises 

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; 

2005a; 2006) and wild harbor porpoises 

(e.g., Johnston, 2002) responded to 

sound (e.g., acoustic harassment devices 

(ADHs), acoustic deterrent devices 

(ADDs), or other non-pulsed sound 

sources) is very low (e.g., ∼120 dB SPL), 

although the biological significance of 

the disturbance is uncertain. Therefore, 

the risk function curve as presented is 

not used. Instead, a step function 

threshold of 120 dB SPL is used to 

estimate take of harbor porpoises (i.e., 

assumes that all harbor porpoises 

exposed to 120 dB or higher MFAS/ 

HFAS will respond in a way NMFS 

considers behavioral harassment). 

Modeling Acoustic Effects 

The methodology for analyzing 

potential impacts from mid- and highfrequency acoustic sources is presented 

in this section, which defines the model 

process in detail, describes how the 

impact threshold derived from NavyNMFS consultations are derived, and 

discusses relative potential impact 

based on species biology. 

Modeling methods applied herein 

were originally developed for midfrequency (1–10 kHz) active (MFA) 

sonars (e.g., surface-ship hull-mounted 

sonars, which are not used in the 

NAVSEA NUWC Keyport Range 

Complex). Nevertheless, the methods 

and thresholds are agreed upon by the 

U.S. Navy and NMFS as the best 

available science with which to 

determine the extent of physiological or 

behavioral effects on marine mammals 

that would result from the use of midfrequency active (MFA) and high 

frequency active (HFA) acoustic sources 

for this proposed action. Detailed 

descriptions of the modeling process 

and results are provided in LOA 

Application. 

The Navy acoustic exposure model 

process uses a number of inter-related 

software tools to assess potential 

exposure of marine mammals to Navy 

generated underwater sound. For sonar, 

these tools estimate potential impact 

volumes and areas over a range of 

thresholds for sonar specific operating 

modes. Results are based upon 

extensive pre-computations over the 

range of acoustic environments that 

might be encountered in the operating 

area. 

The process includes four steps used 

to calculate potential exposures: 

• Identify unique acoustic 

environments that encompass the 

operating area. Parameters include 

depth and seafloor geography, bottom 

characteristics and sediment type, wind 

and surface roughness, sound velocity 

profile, surface duct, sound channel, 

and convergence zones. 

• Compute transmission loss (TL) 

data appropriate for each sensor type in 

each of these acoustic environments. 


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32288 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

Propagation can be complex depending 

on a number of environmental 

parameters listed in step one, as well as 

sonar operating parameters such as 

directivity, source level, ping rate, and 

ping length. The Navy standard CASS– 

GRAB acoustic propagation model is 

used to resolve these complexities for 

underwater propagation prediction. 

• Use that TL to estimate the total 

sound energy received at each point in 

the acoustic environment. 

• Apply this energy to predicted 

animal density for that area to estimate 

potential acoustic exposure, with 

animals distributed in 3–D based on 

best available science on animal dive 

profiles. 

The primary potential impact to 

marine mammals from underwater 

acoustics is Level B harassment from 

noise. A certain proportion of marine 

mammals are expected to experience 

behavioral disturbance at different 

received sound pressure levels and are 

counted as Level B harassment 

exposures. A detailed discussion of the 

modeling is provided in the Navy’s LOA 

application. 

Step 1. Acoustic Sources 

For modeling purposes, acoustic 

source parameters were based on 

records from previous RDT&E activities, 

to reflect the underwater sound use 

expected to occur during activities in 

the NAVSEA NUWC Keyport Range 

Complex. The actual acoustic source 

parameters in many cases are classified, 

however, modeling used to calculate 

exposures to marine mammals 

employed actual and preferred 

parameters which have in the past been 

used during RDT&E activities in the 

NAVSEA NUWC Keyport Range 

Complex. 

Every use of underwater acoustic 

energy includes the potential to harass 

marine animals in the vicinity of the 

source. The number of animals exposed 

to potential harassment in any such 

action is dictated by the propagation 

field and the manner in which the 

acoustic source is operated (i.e., source 

level, depth, frequency, pulse length, 

directivity, platform speed, repetition 

rate). A wide variety of systems/ 

equipment that utilize narrowband 

acoustic sources are employed at the 

NAVSEA NUWC Keyport Range 

Complex. Eight have been selected as 

representative of the types of operating 

in this range and are described in Table 

8. Take estimates for these sources are 

calculated and reported on a per-run 

basis. 

TABLE 8—MID- AND HIGH-FREQUENCY ACOUSTIC SOURCES EMPLOYED IN THE KEYPORT RANGE COMPLEX

Source designation Acoustic source description Frequency class Takes reported 

S1 ........................................ Sub-bottom profiler ................................. Mid-frequency ......................................... Per 4-hour run. 

S2 ........................................ UUV source ............................................. High-frequency ........................................ Per 2-hour run. 

S3 ........................................ REMUS Modem ...................................... Mid-frequency ......................................... Per 2-hour run. 

S4 ........................................ REMUS–SAS–HF ................................... High-frequency ........................................ Per 2-hour run. 

S5 ........................................ Range Target .......................................... Mid-frequency ......................................... Per 20-minute run. 

S6 ........................................ Test Vehicle 1 ......................................... High-frequency ........................................ Per 10-minute run. 

S7 ........................................ Test Vehicle 2 ......................................... High-frequency ........................................ Per 10-minute run. 

S8 ........................................ Test Vehicle 3 ......................................... High-frequency ........................................ Per 10-minute run. 

The acoustic modeling that is 

necessary to support the take estimates 

for each of these sources relies upon a 

generalized description of the manner of 

the operating modes. This description 

includes the following: 

• ‘‘Effective’’ energy source level— 

The total energy across the band of the 

source, scaled by the pulse length (10 

log10 [pulse length]). 

• Source depth—Depth of the source 

in meters. Each source was modeled in 

the middle of the water column. 

• Nominal frequency—Typically the 

center band of the source emission. 

These are frequencies that have been 

reported in open literature and are used 

to avoid classification issues. 

Differences between these nominal 

values and actual source frequencies are 

small enough to be of little consequence 

to the output impact volumes. 

• Source directivity—The source 

beam is modeled as the product of a 

horizontal beam pattern and a vertical 

beam pattern. Two parameters define 

the horizontal beam pattern: 

• Horizontal beam width—Width of 

the source beam (degrees) in the 

horizontal plane (assumed constant for 

all horizontal steer directions). 

• Horizontal steer direction— 

Direction in the horizontal in which the 

beam is steered relative to the direction 

in which the platform is heading. 

The horizontal beam has constant 

response across the width of the beam 

and with flat, 20-dB down sidelobes. 

(Note that steer directions j, ¥j, 180o 

¥ j, and 180o + j all produce equal 

impact volumes.) 

Similarly, two parameters define the 

vertical beam pattern: 

• Vertical beam width—Width of the 

source beam (degrees) in the vertical 

plane measured at the 3-dB down point. 

(The width is that of the beam steered 

towards broadside and not the width of 

the beam at the specified vertical steer 

direction.) 

• Vertical steer direction—Direction 

in the vertical plane that the beam is 

steered relative to the horizontal 

(upward looking angles are positive). 

To avoid sharp transitions that a 

rectangular beam might introduce, the 

power response at vertical angle q is 

max

sin , . 2

0 01 2

n

n 

s

s

θ θ

θ θ

⎢ ( ) − ⎣ ⎥

⎦

⎡ ( ) − ⎣ ⎤

⎦

⎧

⎨

⎪

⎩

⎪

⎫

⎬

⎪

⎭ sin ⎪

where n = 180°/qw is the number of halfwavelength-spaced elements in a line 

array that produces a main lobe with a 

beam width of qw. qs is the vertical beam 

steer direction. 

Ping spacing—Distance between 

pings. For most sources this is generally 

just the product of the speed of advance 

of the platform and the repetition rate of 

the source. Animal motion is generally 

of no consequence as long as the source 

motion is greater than the speed of the 

animal (nominally, three knots). For 

stationary (or nearly stationary) sources, 

the ‘‘average’’ speed of the animal is 

used in place of the platform speed. The 

attendant assumption is that the animals 

are all moving in the same constant 

direction. 

These parameters are defined for each 

of the acoustic sources in the following 

Table 9. 


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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32289 

TABLE 9—DESCRIPTION OF NAVSEA NUWC KEYPORT RANGE COMPLEX SOURCES

Acoustic source description Center frequency Source level Emission spacing Vertical directivity 

horizontal 

Horizontal directivity horizontal 

Sub-bottom profiler ............................. 4.5 kHz ................. 207 dB ................. 0.2 m .................... 20 deg .................. 20 deg. 

UUV source ......................................... 15 kHz .................. 205 dB ................. 1.9 m .................... 30 deg .................. 50 deg. 

REMUS Modem .................................. 10 kHz .................. 186 dB ................. 45 m ..................... 60 deg .................. 360 deg. 

REMUS–SAS–HF ............................... 150 kHz ................ 220 dB ................. 1.9 m .................... 9 deg .................... 15 deg. 

Range Target ...................................... 5 kHz .................... 233 dB ................. 93 m ..................... 60 deg .................. 360 deg. 

Test Vehicle 1 ..................................... 20 kHz .................. 233 dB ................. 45 m ..................... 20 deg .................. 60 deg. 

Test Vehicle 2 ..................................... 25 kHz .................. 230 dB ................. 540 m ................... 20 deg .................. 60 deg. 

Test Vehicle 3 ..................................... 30 kHz .................. 233 dB ................. 617 m ................... 20 deg .................. 60 deg. 

Step 2. Environmental Provinces 

Propagation loss ultimately 

determines the extent of the Zone of 

Influence (ZOI) for a particular source 

activity. Propagation loss as a function 

of range responds to a number of 

environmental parameters: 

• Water depth 

• Sound speed variability throughout 

the water column 

• Bottom geo-acoustic properties, and 

• Wind speed 

Due to the importance that 

propagation loss plays in modeling 

effects, the Navy has over the last four 

to five decades invested heavily in 

measuring and modeling these 

environmental parameters. The result of 

this effort is the following collection of 

global databases of these environmental 

parameters, most of which are accepted 

as standards for all Navy modeling 

efforts. 

• Water depth—Digital Bathymetry 

Data Base Variable Resolution (DBDBV) 

• Sound speed—Generalized Digital 

Environmental Model (GDEM) 

• Bottom loss—Low-Frequency 

Bottom Loss (LFBL), Sediment 

Thickness Database, and HighFrequency Bottom Loss (HFBL), and 

• Wind speed—U.S. Navy Marine 

Climatic Atlas of the World 

Representative environmental 

parameters are selected for each of the 

three operating areas: DBRC, Keyport, 

and Quinault. Sources of local 

environmental-acoustic properties were 

supplemented with Navy Standard 

OAML data to determine model inputs 

for bathymetry, sound-speed, and 

sediment properties. 

The DBRC and Keyport ranges are 

located inland with limited water-depth 

variability: The maximum water depth 

in Dabob Bay is approximately 200 

meters; the maximum in the Keyport 

range is approximately 30 meters (98 

feet). The Quinault range, on the other 

hand, is located seaward of the 

Washington State Coast to depths 

greater than a kilometer. 

Sound speed profiles for winter and 

summer from the OAML open-ocean 

database are presented in Figure 6–10 of 

the Navy’s LOA application. The winter 

profile is a classic half-channel (sound 

speed monotonically increasing with 

depth). The summer profile consists of 

a shallow surface duct over a modest 

thermocline. Individual profiles taken 

from World Ocean Data Base (NODC, 

2005) for DBRC and Keyport are 

generally consistent with these openocean profiles. Some of these profiles 

exhibit some effects of additional fresh 

water near the surface; others have a 

little warmer surface layer than this 

summer profile. However, the truncated 

deep-water profiles are adequately 

representative of the inland ranges. 

The bottom type in the Quinault range 

varies consistently with water depth. 

The shallower depths (less than 500 

meters) tend to have sandy bottoms 

(HFBL class = 2); the deeper depths tend 

to be silt (HFBL class = 8). 

The sediment type of the DBRC and 

Keyport areas that we used for our 

modeling were different from those 

found in the Low Frequency Bottom 

Loss (LFBL) database or implied by the 

High-Frequency Bottom Loss (HFBL) 

database. Although the water depth of 

these areas can be greater that 50 m, the 

LFBL database assigned them the 

default ‘‘coarse sand’’ sediment type 

that was assigned to areas with water 

depth less than 50 m (Vidmar, 1994). 

Core data from these areas were 

collected as part of environmental 

monitoring (Llanso, 1998). Cores 14 and 

15 from the northern parts of the DBRC 

area indicated sediments with sands 

and silty sands. A silty sand sediment 

type was assigned to these areas (HFBL 

class = 2). Core 304R from the southern 

part of the DBRC area indicated 

sediments with clay. A clay-silt 

sediment type (HFBL class = 4) was 

assigned to this area taking into account 

the transition from the more sandy 

northern area to the clay of the southern 

area. These assignments are consistent 

with the observation (Helton, 1976) that 

the boundary area between the northern 

and southern areas had sediments that 

were mostly mud with a small amount 

of sand. The Keyport area did not have 

any cores in the study area but had three 

cores surrounding the area: Core 308R to 

the northwest indicated sand sediment; 

core 69 to the northeast indicated sand 

and silty sand sediments; and core 34 to 

the south indicated clay sediment. 

Given the surrounding cores we 

assigned a sand-silt-clay sediment type 

to this area (HFBL class = 4). 

The Keyport range has a proposed 

extension to the east and south of the 

existing boundaries. In addition to the 

existing DBRC boundary, there is one 

extension to the south and another 

extension to the south and the north. 

The Quinault range is extended into a 

much larger deep-water region 

coincident with W–237A with a surf 

zone at Pacific Beach. 

Step 3. Impact Volumes and Impact 

Ranges 

Many naval actions include the 

potential to injure or harass marine 

animals in the neighboring waters 

through noise emissions. Given fixed 

harassment metrics and thresholds, the 

number of animals exposed to potential 

harassment in any such action is 

dictated by the propagation field and 

the characteristics of the noise source. 

The expected impact volume 

associated with a particular activity is 

defined as the expected volume of water 

in which some acoustic metric exceeds 

a specified threshold. The product of 

this volume with a volumetric animal 

density yields the expected value of the 

number of animals exposed to that 

acoustic metric at a level that exceeds 

the threshold. There are two acoustic 

metrics for mid- and high-frequency 

acoustic sources effects: An energy term 

(energy flux density) or a pressure term 

(peak pressure). The thresholds 

associated with each of these metrics 

define the levels at which the animals 

exposed will experience some degree of 

harassment (ranging from behavioral 

change to hearing loss). 

Impact volume is particularly relevant 

when trying to estimate the effect of 

repeated source emissions separated in 

either time or space. Impact range is 

32290 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

defined as the maximum range at which 

a particular threshold is exceeded for a 

single source emission. 

The two measures of potential harm 

to marine wildlife due to mid- and highfrequency acoustic sources operations 

are the accumulated (summed over all 

source emissions) energy flux density 

received by the animal over the duration 

of the activity, and the peak pressure 

(loudest sound received) by the animal 

over the duration of the activity. 

Regardless of the type of source, 

estimating the number of animals that 

may be harassed in a particular 

environment entails the following steps. 

• Each source emission is modeled 

according to the particular operating 

mode of that source. The ‘‘effective’’ 

energy source level is computed by 

integrating over the bandwidth of the 

source, and scaling by the pulse length. 

The location of the source at the time of 

each emission must also be specified. 

• For the relevant environmental 

acoustic parameters, Transmission Loss 

(TL) estimates are computed, sampling 

the water column over the appropriate 

depth and range intervals. TL data are 

sampled at the typical depth(s) of the 

source and at the nominal center 

frequency of the source. 

• The accumulated energy and 

maximum sound pressure level (SPL) 

are sampled over a volumetric grid 

within the waters surrounding a source 

action. At each grid point, the received 

signal from each source emission is 

modeled as the source level reduced by 

the appropriate propagation loss from 

the location of the source at the time of 

each emission to that grid point. The 

maximum SPL field is calculated by 

taking the maximum level of the 

received signal over all emissions, and 

the energy field is calculated by 

summing the energy of the signal over 

all emissions, and adjusting for pulse 

length. 

• The impact volume for a given 

threshold is estimated by summing the 

incremental volumes represented by 

each grid point for which the 

appropriate metric exceeds that 

threshold. For maximum SPL, 

calculation of the expected volume 

represented by each grid point depends 

on the maximum SPL at that point, and 

requires an extra step to apply the risk 

function. 

Finally, the number of takes is 

estimated as the product (scalar or 

vector, depending upon whether an 

animal density depth distribution is 

available) of the impact volume and the 

animal densities. 

(4) Computing Impact Volumes for 

Active Sonars 

The computation for impact volumes 

of active acoustic sources uses the 

following steps: 

• Identification of the underwater 

propagation model used to compute 

transmission loss data, a listing of the 

source-related inputs to that model, and 

a description of the output parameters 

that are passed to the energy 

accumulation algorithm. 

• Definitions of the parameters 

describing each acoustic source type. 

• Description of the algorithms and 

sampling rates associated with the 

energy accumulation algorithm. 

A detailed discussion of computing 

methodologies is provided in the Navy’s 

LOA application. 

Estimated Takes of Marine Mammals 

When analyzing the results of the 

acoustic exposure modeling to provide 

an estimate of effects, it is important to 

understand that there are limitations to 

the ecological data used in the model, 

and that the model results must be 

interpreted within the context of a given 

species’ ecology. When reviewing the 

acoustic effects modeling results, it is 

also important to understand there have 

been no confirmed acoustic effects on 

any marine species in previous 

NAVSEA NUWC Keyport Range 

Complex exercises or from any other 

mid- and high-frequency active sonar 

RDT&E activities within the NAVSEA 

NUWC Keyport Range Complex. 

The annual estimated number of 

exposures from acoustic sources are 

given for each species. The modeled 

exposure is the probability of a response 

that NMFS would classify as harassment 

under the MMPA. These exposures are 

calculated for all activities modeled and 

represent the total exposures per year 

and are not based on a per day basis. 

Range Operating Policies and 

Procedures (ROP) Description operating 

policies and procedures, as described in 

NUWC Keyport Report 1509, Range 

Operating Policies and Procedures 

Manual (ROP), are followed for all 

NUWC Keyport range activities. NUWC 

Keyport would continue to implement 

the ROP policies and procedures within 

the NAVSEA NUWC Keyport Range 

Complex with implementation of the 

proposed range extension. The ROP is 

followed to protect the health and safety 

of the public and Navy personnel and 

equipment as well as to protect the 

marine environment. The policies and 

procedures address issues such as 

safety, development of approved run 

plans, range operation personnel 

responsibility, deficiency reporting, all 

facets of range activities, and the 

establishment of ‘‘exclusion zones’’ to 

ensure that there are no marine 

mammals within a prescribed area prior 

to the commencement of each in-water 

exercise within the NAVSEA NUWC 

Keyport Range Complex. All range 

operators are trained by NOAA in 

marine mammal identification, and 

active acoustic activities are suspended 

or delayed if whales, dolphins, or 

porpoises (cetaceans) are observed 

within range areas. 

The modeling for acoustic sources 

using the risk function methodology 

predicts 15,130 annual acoustic 

exposures that result in Level B 

harassment and 2,026 annual exposures 

of pinnipeds that exceed the TTS 

threshold for Level B Harassment under 

these criteria. The model predicts 0 

annual exposures that exceed the PTS 

threshold (Level A Harassment). The 

Navy is not requesting Level A 

harassment authorization for any marine 

mammal. The summary of modeled 

mid- and high-frequency acoustic 

source exposure harassment numbers by 

species are presented in Tables 9 

through 12 and represent potential 

harassment after implementation of the 

ROP. Implementation of the ROP would 

result in a zero take with respect to all 

cetaceans except for the harbor 

porpoise. 

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EP07JY09.008</GPH> EP07JY09.009</GPH>
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It is highly unlikely that a marine 

mammal would experience any longterm effects because the large NAVSEA 

NUWC Keyport Range Complex test 

areas make individual mammals’ 

repeated and/or prolonged exposures to 

high-level sonar signals unlikely. 

Specifically, mid- and high-frequency 

acoustic sources have limited marine 

mammal exposure ranges and relatively 

high platform speeds. Moreover, there 

are no exposures that exceed the PTS 

threshold and result in Level A 

harassment from sonar and other active 

acoustic sources. Therefore, long-term 

effects on individuals, populations or 

stocks are unlikely. 

When analyzing the results of the 

acoustic exposure modeling to provide 

an estimate of effects, it is important to 

understand that there are limitations to 

the ecological data (diving behavior, 

migration or movement patterns and 

population dynamics) used in the 

model, and that the model results must 

be interpreted within the context of a 

given species’ ecology. 

When reviewing the acoustic 

exposure modeling results, it is also 

important to understand that the 

estimates of marine mammal sound 

exposures are presented with 

consideration of standard protective 

measure operating procedures. The ROP 

along with monitoring and mitigation 

measures for the Keyport Range 

Complex RDT&E activities, including 

detection of marine mammals, 

protective measures such as stand off 

distances and delaying or halting 

activities, and power down procedures 

if marine mammals are detected within 

one of the exclusion zones, are provided 

below. 

Because of the time delay between 

pings, an animal encountering the sonar 

will accumulate energy for only a few 

sonar pings over the course of a few 

minutes. Therefore, exposure to sonar 

would be a short-term event, 

minimizing any single animal’s 

exposure to sound levels approaching 

the harassment thresholds. 

Effects on Marine Mammal Habitat 

The proposed extended area for the 

Keyport Range Site is also critical 

habitat of the Southern Resident killer 

whales. The current Keyport Range Site 

is outside the critical habitat area. There 

are no other areas within the Keyport 

Range Complex with extensions that are 

specifically considered as important 

physical habitat for marine mammals. 

The prey of marine mammals are 

considered part of their habitat. The 

Navy’s DEIS for the Keyport Range 

Complex RDT&E and range extension 

activities contain a detailed discussion 

of the potential effects to fish from 

active acoustic sources. Below is a 

summary of conclusions regarding those 

effects. 

Effects on Fish From Active Acoustic 

Sources 

The extent of data, and particularly 

scientifically peer-reviewed data, on the 

effects of high intensity sounds on fish 

is limited. In considering the available 

literature, the vast majority of fish 

species studied to date are hearing 


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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32293 

generalists and cannot hear sounds 

above 500 to 1,500 Hz (depending upon 

the species), and, therefore, behavioral 

effects on these species from higher 

frequency sounds are not likely. 

Moreover, even those fish species that 

may hear above 1.5 kHz, such as a few 

sciaenids and the clupeids (and 

relatives), have relatively poor hearing 

above 1.5 kHz as compared to their 

hearing sensitivity at lower frequencies. 

Therefore, even among the species that 

have hearing ranges that overlap with 

some mid- and high-frequency sounds, 

it is likely that the fish will only 

actually hear the sounds if the fish and 

source are very close to one another. 

Finally, since the vast majority of 

sounds that are of biological relevance 

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

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

even if a fish detects a mid- or highfrequency sound, these sounds will not 

mask detection of lower frequency 

biologically relevant sounds. Based on 

the above information, there will likely 

be few, if any, behavioral impacts on 

fish. 

Alternatively, it is possible that very 

intense mid- and high frequency signals 

could have a physical impact on fish, 

resulting in damage to the swim bladder 

and other organ systems. However, even 

these kinds of effects have only been 

shown in a few cases when the fish has 

been very close to the source. Such 

effects have never been indicated in 

response to any Navy sonar. Moreover, 

at greater distances (the distance clearly 

would depend on the intensity of the 

signal from the source) there appears to 

be little or no impact on fish, and 

particularly no impact on fish that do 

not have a swim bladder or other air 

bubble that would be affected by rapid 

pressure changes. 

Proposed Mitigation Measures 

In order to issue an incidental take 

authorization (ITA) under Section 

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

set forth the ‘‘permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance.’’ The National Defense 

Authorization Act (NDAA) of 2004 

amended the MMPA as it relates to 

military-readiness activities and the 

incidental take authorization process 

such that ‘‘least practicable adverse 

impact’’ shall include consideration of 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the ‘‘military readiness 

activity.’’ 

In addition, any mitigation measure 

prescribed by NMFS should be known 

to accomplish, have a reasonable 

likelihood of accomplishing (based on 

current science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 

(a) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(b) A reduction in the numbers of 

marine mammals (total number or 

number at a biologically important time 

or location) exposed to received levels 

underwater active acoustic sources or 

other activities expected to result in the 

take of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(c) A reduction in the number of times 

(total number or number at biologically 

important time or location) individuals 

would be exposed to received levels of 

underwater active acoustic sources or 

other activities expected to result in the 

take of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(d) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to received levels of 

underwater active acoustic sources 

expected to result in the take of marine 

mammals (this goal may contribute to a, 

above, or to reducing the severity of 

harassment takes only). 

(e) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(f) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (shut-down zone, etc.). 

NMFS worked with the Navy and 

identified potential practicable and 

effective mitigation measures, which 

included a careful balancing of the 

likely benefit of any particular measure 

to the marine mammals with the likely 

effect of that measure on personnel 

safety, practicality of implementation, 

and impact on the military readiness 

activity. These mitigation measures are 

listed below. 

Proposed Mitigation Measures for Active 

Acoustic Sources, Surface Operations 

and Other Activities 

Current protective measures known as 

the ROP employed by the NAVSEA 

NUWC Keyport include applicable 

training of personnel and 

implementation of activity specific 

procedures resulting in minimization 

and/or avoidance of interactions with 

protected resources and are provided 

below. 

(1) Range activities shall be conducted 

in such a way as to ensure marine 

mammals are not harassed or harmed by 

human-caused events. 

(2) Marine mammal observers are on 

board ship during range activities. All 

range personnel shall be trained in 

marine mammal recognition. Marine 

mammal observer training is normally 

conducted by qualified organizations 

such as NOAA/National Marine 

Mammal Lab (NMML) on an as needed 

basis. 

(3) Vessels on a range use safety 

lookouts during all hours of range 

activities. Lookout duties include 

looking for any and all objects in the 

water, including marine mammals. 

These lookouts are not necessarily 

looking only for marine mammals. They 

have other duties while aboard. All 

sightings are reported to the Range 

Officer in charge of overseeing the 

activity. 

(4) Visual surveillance shall be 

accomplished just prior to all in-water 

exercises. This surveillance shall ensure 

that no marine mammals are visible 

within the boundaries of the area within 

which the test unit is expected to be 

operating. Surveillance shall include, as 

a minimum, monitoring from all 

participating surface craft and, where 

available, adjacent shore sites. 

(5) The Navy shall postpone activities 

until cetaceans (whales, dolphins, and 

porpoises) leave the project area. When 

cetaceans have been sighted in an area, 

all range participants increase vigilance 

and take reasonable and practicable 

actions to avoid collisions and activities 

that may 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). 

(6) An ‘‘exclusion zone’’ shall be 

established and surveillance will be 

conducted to ensure that there are no 

marine mammals within this exclusion 

zone prior to the commencement of 

each in-water exercise. For cetaceans 

(whales, dolphins, and porpoises), the 

exclusion zone must be at least as large 

as the entire area within which the test 

unit may operate, and must extend at 

least 1,000 yards (914.4 m) from the 

intended track of the test unit. For 

pinnipeds, the exclusion zone extends 

out 100 yards (91 m) from the intended 

track of the test unit. 

32294 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

(7) Range craft shall not approach 

within 100 yards (91 m) of marine 

mammals and shall be followed to the 

extent practicable considering human 

and vessel safety priorities. All Navy 

vessels and aircraft, including 

helicopters, are expected to comply 

with this directive. This includes 

marine mammals ‘‘hauled-out’’ on 

islands, rocks, and other areas such as 

buoys. 

(8) Passive acoustic monitoring shall 

be utilized to detect marine mammals in 

the area before and during activities, 

especially when visibility is reduced. 

(9) Procedures for reporting marine 

mammal sightings on the NAVSEA 

NUWC Keyport Range Complex shall be 

promulgated, and sightings shall be 

entered into the Range Operating 

System and forwarded to NOAA/NMML 

Platforms of Opportunity Program. 

Research and Conservation Measures 

for Marine Mammals 

The Navy provides a significant 

amount of funding and support for 

marine research. The Navy provided 

$26 million in Fiscal Year 2008 and 

plans for $22 million in Fiscal Year 

2009 to universities, research 

institutions, Federal laboratories, 

private companies, and independent 

researchers around the world to study 

marine mammals. Over the past five 

years the Navy has funded over $100 

million in marine mammal research. 

The U.S. Navy sponsors seventy percent 

of all U.S. research concerning the 

effects of human-generated sound on 

marine mammals and 50 percent of such 

research conducted worldwide. Major 

topics of Navy-supported research 

include the following: 

• Better understanding of marine 

species distribution and important 

habitat areas, 

• Developing methods to detect and 

monitor marine species before and 

during training, 

• Understanding the effects of sound 

on marine mammals, sea turtles, fish, 

and birds, and 

• Developing tools to model and 

estimate potential effects of sound. 

The Navy’s Office of Naval Research 

currently coordinates six programs that 

examine the marine environment and 

are devoted solely to studying the 

effects of noise and/or the 

implementation of technology tools that 

will assist the Navy in studying and 

tracking marine mammals. The six 

programs are as follows: 

• Environmental Consequences of 

Underwater Sound, 

• Non-Auditory Biological Effects of 

Sound on Marine Mammals, 

• Effects of Sound on the Marine 

Environment, 

• Sensors and Models for Marine 

Environmental Monitoring, 

• Effects of Sound on Hearing of 

Marine Animals, and 

• Passive Acoustic Detection, 

Classification, and Tracking of Marine 

Mammals. 

Furthermore, research cruises led by 

NMFS and by academic institutions 

have received funding from the Navy. 

The Navy has sponsored several 

workshops to evaluate the current state 

of knowledge and potential for future 

acoustic monitoring of marine 

mammals. The workshops brought 

together acoustic experts and marine 

biologists from the Navy and other 

research organizations to present data 

and information on current acoustic 

monitoring research efforts and to 

evaluate the potential for incorporating 

similar technology and methods on 

instrumented ranges. However, acoustic 

detection, identification, localization, 

and tracking of individual animals still 

requires a significant amount of research 

effort to be considered a reliable method 

for marine mammal monitoring. The 

Navy supports research efforts on 

acoustic monitoring and will continue 

to investigate the feasibility of passive 

acoustics as a potential mitigation and 

monitoring tool. 

Overall, the Navy will continue to 

fund ongoing marine mammal research, 

and is planning to coordinate long-term 

monitoring/studies of marine mammals 

on various established ranges and 

operating areas. The Navy will continue 

to research and contribute to university/ 

external research to improve the state of 

the science regarding marine species 

biology and acoustic effects. These 

efforts include mitigation and 

monitoring programs; data sharing with 

NMFS and via the literature for research 

and development efforts. 

Long-Term Prospective Study 

NMFS, with input and assistance 

from the Navy and several other 

agencies and entities, will perform a 

longitudinal observational study of 

marine mammal strandings to 

systematically observe for and record 

the types of pathologies and diseases 

and investigate the relationship with 

potential causal factors (e.g., sonar, 

seismic, weather). The study will not be 

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

be unable to quantify or estimate 

specific sonar or other sound exposures 

for individual animals that strand. 

However, a cross-sectional or 

correlational analysis, a method of 

descriptive rather than analytical 

epidemiology, can be conducted to 

compare population characteristics, e.g., 

frequency of strandings and types of 

specific pathologies between general 

periods of various anthropogenic 

activities and non-activities within a 

prescribed geographic space. In the long 

term study, we will more fully and 

consistently collect and analyze data on 

the demographics of strandings in 

specific locations and consider 

anthropogenic activities and physical, 

chemical, and biological environmental 

parameters. This approach in 

conjunction with true cohort studies 

(tagging animals, measuring received 

sounds, and evaluating behavior or 

injuries) in the presence of activities 

and non-activities will provide critical 

information needed to further define the 

impacts of MTEs and other 

anthropogenic and non-anthropogenic 

stressors. In coordination with the Navy 

and other federal and non-federal 

partners, the comparative study will be 

designed and conducted for specific 

sites during intervals of the presence of 

anthropogenic activities such as sonar 

transmission or other sound exposures 

and absence to evaluate demographics 

of morbidity and mortality, lesions 

found, and cause of death or stranding. 

Additional data that will be collected 

and analyzed in an effort to control 

potential confounding factors include 

variables such as average sea 

temperature (or just season), 

meteorological or other environmental 

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

activities, etc. All efforts will be made 

to include appropriate controls (i.e., no 

sonar or no seismic); environmental 

variables may complicate the 

interpretation of ‘‘control’’ 

measurements. The Navy and NMFS 

along with other partners are evaluating 

mechanisms for funding this study. 

Proposed Monitoring Measures 

In order to issue an incidental take 

authorization (ITA) for an activity, 

section 101(a)(5)(A) of the MMPA states 

that NMFS must set forth ‘‘requirements 

pertaining to the monitoring and 

reporting of such taking.’’ The MMPA 

implementing regulations at 50 CFR 

216.104(a)(13) indicate that requests for 

LOAs must include the suggested means 

of accomplishing the necessary 

monitoring and reporting that will result 

in increased knowledge of the species 

and of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(a) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32295 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the analyses 

mentioned below. 

(b) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of HFAS/ 

MFAS (or other stimuli) that we 

associate with specific adverse effects, 

such as behavioral harassment, TTS, or 

PTS. 

(c) An increase in our understanding 

of how marine mammals respond to 

HFAS/MFAS (at specific received 

levels) or other stimuli expected to 

result in take and how anticipated 

adverse effects on individuals (in 

different ways and to varying degrees) 

may impact the population, species, or 

stock (specifically through effects on 

annual rates of recruitment or survival) 

through any of the following methods: 

• Behavioral observations in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information). 

• Physiological measurements in the 

presence of HFAS/MFAS compared to 

observations in the absence of sonar 

(need to be able to accurately predict 

received level and report bathymetric 

conditions, distance from source, and 

other pertinent information), and/or 

• Pre-planned and thorough 

investigation of stranding events that 

occur coincident to naval activities. 

• Distribution and/or abundance 

comparisons in times or areas with 

concentrated HFAS/MFAS versus times 

or areas without HFAS/MFAS. 

(d) An increased knowledge of the 

affected species. 

(e) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

With these goals in mind, the 

following monitoring procedures for the 

proposed Navy’s NAVSEA NUWC 

Keyport Range Complex RDT&E and 

range extension activities have been 

worked out between NMFS and the 

Navy. Keyport will conduct two special 

surveys per year to monitor HFAS and 

MFAS respectively. This will occur at 

the DBRC Range site. This will include 

visual surveys composed of vessel, 

shore monitoring and passive acoustic 

monitoring. Marine mammal observers 

may be on range craft and/or on shore 

side. NMFS and the Navy continue to 

improve the plan and may modify the 

monitoring plan based on input 

received during the public comment 

period. 

Several monitoring techniques were 

prescribed for other Navy activities 

related to sonar exercises (see 

monitoring plan for Navy’s Hawaii 

Range Complex; Navy, 2008). Every 

known monitoring technique has 

advantages and disadvantages that vary 

temporally and spatially. Therefore, a 

combination of techniques is proposed 

to be used so that the detection and 

observation of marine animals is 

maximized. Monitoring methods 

proposed during mission activity events 

in the NAVSEA NUWC Keyport Range 

Complex Study Area include a 

combination of the following research 

elements that would be used to collect 

data for comprehensive assessment: 

• Visual Surveys—Vessel, Shorebased, and Aerial (as applicable) 

• Passive Acoustic Monitoring (PAM) 

• Marine Mammal Observers (MMOs) 

on Range craft 

Visual Surveys 

Visual surveys of marine animals can 

provide detailed information about their 

behavior, distribution, and abundance. 

Baseline measurements and/or data for 

comparison can be obtained before, 

during and after mission activities. 

Changes in behavior and geographical 

distribution may be used to infer if and 

how animals are impacted by sound. In 

accordance with all safety 

considerations, observations will be 

maximized by working from all 

available platforms: vessels, aircraft, 

land and/or in combination. Shorebased (for inland waters), vessel and 

aerial (as applicable) surveys may be 

conducted from shore support, range 

craft, Navy vessels, or contracted 

vessels. Visual surveys will be 

conducted during NAVSEA NUWC 

Keyport range events which are 

identified as being able to provide the 

highest likelihood of success. 

Vessel surveys are often preferred by 

researchers because of their slow speed, 

offshore survey ability, duration and 

ability to more closely approach animals 

under observation. They also result in 

higher rate of species identification, the 

opportunity to combine line transect 

and mark-recapture methods of 

estimating abundance, and collection of 

oceanographic and other relevant data. 

Vessels can be less expensive per unit 

of time, but because of the length of 

time to cover a given survey area, may 

actually be more expensive in the long 

run compared to aerial surveys (Dawson 

et al., 2008). Changes in behavior and 

geographical distribution may be used 

to infer if and how animals are impacted 

by sound. However, it should be noted 

that animal reaction (reactive 

movement) to the survey vessel itself is 

possible (Dawson et al., 2008). Vessel 

surveys typically do not allow for 

observation of animals below the ocean 

surface (e.g. in the water column) as 

compared to aerial surveys (DoN, 2008a; 

Slooten et al., 2004). 

NAVSEA NUWC Keyport will 

conduct two special surveys per year to 

monitor HFAS and MFAS respectively. 

This will occur at the DBRC Range site. 

The determination to monitor in the 

DBRC area includes the following 

reasoning: (1) It would provide the 

highest amount of activity; (2) it is a 

controlled environment; (3) 

permanently bottom mounted 

monitoring hydrophones are in place; 

(4) most likely environment to get 

accurate data; and (5) conducive to 

excellent shore side observation. 

For specified events, shore-based and 

vessel surveys will be used 1 day prior 

to and 1–2 days post activity. The 

variation in the number of days after 

allows for the detection of animals that 

gradually return to an area, if they 

indeed do change their distribution in 

response to the associated events. DBRC 

is a small area and animals are likely to 

return more quickly than if the test were 

in open ocean. 

Surveys will include the range site 

with special emphasis given to the 

particular path of the test run. Passive 

acoustic system (hydrophone or towed 

array) would be used to determine if 

marine mammals are in the area before 

and/or after the event. When conducting 

a particular survey, the survey team will 

collect: (1) Species identification and 

group size; (2) location and relative 

distance from the acoustic source(s); (3) 

the behavior of marine mammals, 

including standard environmental and 

oceanographic parameters; (4) date, time 

and visual conditions associated with 

each observation; (5) direction of travel 

relative to the active acoustic source; 

and (6) duration of the observation. 

Animal sightings and relative distance 

from a particular active acoustic source 

will be used post-survey to determine 

potential received energy (dB re 1 micro 

Pa-sec). This data will be used, postsurvey, to estimate the number of 

marine mammals exposed to different 

received levels (energy based on 

distance to the source, bathymetry, 

oceanographic conditions and the type 

and power of the acoustic source) and 

their corresponding behavior. 

Although photo-identification studies 

are not typically a component of Navy 

RDT&E activity monitoring surveys, the 

Navy supports using the contracted 

platforms to obtain opportunistic data 

collection. Therefore, absent 

classification issues any unclassified 

digital photographs, if taken, of marine 

mammals during visual surveys will be 

32296 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

provided to local researchers for their 

regional research if requested. 

1. Shore-Based Surveys 

A large number of test events in the 

Keyport Range complex are conducted 

in inland waters allowing for excellent 

shore based surveillance opportunities. 

When practicable, for test events 

planned adjacent to nearshore areas, 

where there are elevated topography or 

coastal structures, shore-based visual 

survey methods will be implemented 

using binoculars or theodolite. These 

methods have been proven valuable in 

similar monitoring studies such as 

ATOC and others (Frankel and Clark, 

1998; Clark and Altman, 2006). 

2. Vessel Surveys 

Keyport Range Complex activities 

conducted in the inland waters are 

supported both from the shore 

(described above) and from range craft. 

The primary purpose of surveys 

performed from these range craft will be 

to document and monitor potential 

behavioral effects of the mission 

activities on marine mammals. As such, 

parameters to be monitored for potential 

effects are changes in the occurrence, 

distribution, numbers, surface behavior, 

and/or disposition (injured or dead) of 

marine mammal species before, during 

and after the mission activities. Postanalysis will focus on how the location, 

speed and vector of the survey vessel 

and the location and direction of the 

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

relates to the animal. Any other vessels 

or aircraft observed in the area will also 

be documented. 

Passive Acoustic Monitoring 

There are both benefits and 

limitations to passive acoustic 

monitoring (Mellinger et al., 2007). 

Passive acoustic monitoring (PAM) 

allows detection of marine mammals 

that vocalize but may not be seen during 

a visual survey. When interpreting data 

collected from PAM, it is understood 

that species specific results must be 

viewed with caution because not all 

animals within a given population are 

calling, or may only be calling only 

under certain conditions (Mellinger, 

2007; ONR, 2007). The Keyport Range 

Complex study area has advanced 

features which allow for passive 

acoustic monitoring. These 

hydrophones are both permanently 

bottom mounted, towed or over-theside. Subject matter experts are 

available for detection and 

identification of species type. 

Marine Mammal Observer on Navy 

Vessels 

All Keyport Range Complex operators 

are trained by NOAA in marine 

mammal identification. Additional use 

of civilian biologists as Marine Mammal 

Observers (MMOs) aboard range craft 

and Navy vessels may be used to 

research the effectiveness of Navy 

marine observers, as well as for data 

collection during other monitoring 

surveys. 

MMOs will be field-experienced 

observers who are Navy biologists or 

contracted observers. These civilian 

MMOs will be placed alongside existing 

Navy marine observers during a sub-set 

of Keyport Range Complex RDT&E 

activities. This can only be done on 

certain vessels and observers may be 

required to have security clearance. 

NUWC Keyport may also use MMOs on 

range craft during test events being 

monitored. MMOs will not be placed 

aboard Navy platforms for every Navy 

testing event, but during specifically 

identified opportunities deemed 

appropriate for data collection efforts. 

The events selected for MMO 

participation will take into account 

safety, logistics, and operational 

concerns. Use of MMOs will verify Navy 

marine observer sighting efficiency, 

offer an opportunity for more detailed 

species identification, provide an 

opportunity to bring animal protection 

awareness to the vessels’ crew, and 

provide the opportunity for an 

experienced biologist to collect data on 

marine mammal behavior. Data 

collected by the MMOs is anticipated to 

assist the Navy with potential 

improvements to marine observer 

training as well as providing the marine 

observers with a chance to gain 

additional knowledge on marine 

mammals. 

Events selected for MMO 

participation will be an appropriate fit 

in terms of security, safety, logistics, 

and compatibility with Keyport Range 

Complex RDT&E activities. The MMOs 

will not be part of the Navy’s formal 

vessel reporting chain of command 

during their data collection efforts, and 

Navy marine observers will follow the 

appropriate chain of command in 

reporting marine mammal sightings. 

Exceptions will be made if an animal is 

observed by the MMO within the 

shutdown zone and was not seen by the 

Navy marine observer. The MMO will 

inform the Navy marine observer of the 

sighting so that appropriate action may 

be taken by the chain of command. For 

less biased data, it is recommended that 

MMOs schedule their daily observations 

to duplicate the Navy marine observers’ 

schedule. 

Civilian MMOs will be aboard Navy 

vessels involved in the study. As 

described earlier, MMOs will meet and 

adhere to necessary qualifications, 

security clearance, logistics and safety 

concerns. MMOs will monitor for 

marine mammals from the same height 

above water as the Navy marine 

observers and as all visual survey teams, 

they will collect the same data collected 

by Navy marine observers, including but 

not limited to: (1) Location of sighting; 

(2) species (if not possible, 

identification of whale or dolphin); (3) 

number of individuals; (4) number of 

calves present, if any; (5) duration of 

sighting; (6) behavior of marine animals 

sighted; (7) direction of travel; (8) 

environmental information associated 

with sighting event including Beaufort 

sea state, wave height, swell direction, 

wind direction, wind speed, glare, 

percentage of glare, percentage of cloud 

cover; and (9) when in relation to navy 

exercises did the sighting occur. 

In addition, the Navy is developing an 

Integrated Comprehensive Monitoring 

Program (ICMP) for marine species to 

assess the effects of Keyport Range 

Complex RDT&E activities on marine 

species and investigate population 

trends in marine species distribution 

and abundance in locations where 

Keyport Range Complex RDT&E 

activities regularly occur. As part of the 

ICMP, knowledge gained from other 

Navy MMO monitored events will be 

incorporated into NUWC Keyport 

monitoring/mitigations as part of the 

adaptive management approach. 

The ICMP will provide the 

overarching coordination that will 

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

Range Complex plan) as well as Navy 

funded research and development (R&D) 

studies. The ICMP will coordinate the 

monitoring program’s progress toward 

meeting its goals and develop a data 

management plan. The ICMP will be 

evaluated annually to provide a matrix 

for progress and goals for the following 

year, and will make recommendations 

on adaptive management for refinement 

and analysis of the monitoring methods. 

The primary objectives of the ICMP 

are to: 

• Monitor and assess the effects of 

Navy activities on protected species; 

• Ensure that data collected at 

multiple locations is collected in a 

manner that allows comparison between 

and among different geographic 

locations; 

• Assess the efficacy and practicality 

of the monitoring and mitigation 

techniques; 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32297 

• Add to the overall knowledge-base 

of marine species and the effects of 

Navy activities on marine species. 

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

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

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

appropriate newly published 

information. 

In combination with the adaptive 

management component of the 

proposed NAVSEA NUWC Keyport 

Range Complex rule and the other 

planned Navy rules (e.g., Atlantic Fleet 

Active Sonar Training, Hawaii Range 

Complex, and Southern California 

Range Complex), the ICMP could 

potentially provide a framework for 

restructuring the monitoring plans and 

allocating monitoring effort based on the 

value of particular specific monitoring 

proposals (in terms of the degree to 

which results would likely contribute to 

stated monitoring goals, as well as the 

likely technical success of the 

monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating based 

on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across Range 

complexes. For example, if careful 

prioritization and planning through the 

ICMP (which would include a review of 

both past monitoring results and current 

scientific developments) were to show 

that a large, intense monitoring effort 

would likely provide extensive, robust 

and much-needed data that could be 

used to understand the effects of sonar 

throughout different geographical areas, 

it may be appropriate to have other 

Range Complexes dedicate money, 

resources, or staff to the specific 

monitoring proposal identified as ‘‘high 

priority’’ by the Navy and NMFS, in lieu 

of focusing on smaller, lower priority 

projects divided throughout their home 

Range Complexes. The ICMP will 

identify: 

• A means by which NMFS and the 

Navy would jointly consider prior years’ 

monitoring results and advancing 

science to determine if modifications 

are needed in mitigation or monitoring 

measures to better effect the goals laid 

out in the Mitigation and Monitoring 

sections of this proposed Keyport Range 

Complex rule. 

• Guidelines for prioritizing 

monitoring projects 

• If, as a result of the Navy-NMFS 

2011 Monitoring Workshop and similar 

to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by Range Complex), but 

rather focused on priority monitoring 

projects that are not necessarily tied to 

the geographic area addressed in the 

rule, the ICMP will be modified to 

include a very clear and unclassified 

recordkeeping system that will allow 

NMFS and the public to see how each 

Range Complex/project is contributing 

to all of the ongoing monitoring 

(resources, effort, money, etc.). 

Adaptive Management 

Our understanding of the effects of 

HFAS/MFAS on marine mammals is 

still in its relative infancy, and yet the 

science in this field is evolving fairly 

quickly. These circumstances make the 

inclusion of an adaptive management 

component both valuable and necessary 

within the context of 5-year regulations 

for activities that have been associated 

with marine mammal mortality in 

certain circumstances and locations 

(though not the Keyport Range Complex 

Study Area). The use of adaptive 

management will give NMFS the ability 

to consider new data from different 

sources to determine (in coordination 

with the Navy), on an annual basis, if 

new or modified mitigation or 

monitoring measures are appropriate for 

subsequent annual LOAs. Following are 

some of the possible sources of 

applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from the 

Keyport Range Complex Study Area or 

other locations). 

• Results from specific stranding 

investigations (either from the Keyport 

Range Complex Study Area or other 

locations, and involving coincident 

Keyport Range Complex RDT&E or not 

involving coincident use). 

• Results from the research activities 

associated with Navy’s HFAS/MFAS. 

• Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise). 

• Any information which reveals that 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations and 

subsequent Letters of Authorization. 

Mitigation measures could be 

modified or added if new data suggest 

that such modifications would have a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

proposed rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to the existing monitoring 

requirements if the new data suggest 

that the addition of a particular measure 

would more effectively accomplish the 

goals of monitoring laid out in this 

proposed rule. The reporting 

requirements associated with this 

proposed rule are designed to provide 

NMFS with monitoring data from the 

previous year to allow NMFS to 

consider the data in issuing annual 

LOAs. NMFS and the Navy will meet 

annually prior to LOA issuance to 

discuss the monitoring reports, Navy 

R&D developments, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ Effective reporting is critical 

both to monitoring 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. 

Notification of Injured or Dead Marine 

Mammals 

Navy personnel will ensure through 

proper chain of command 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 Keyport Range Complex 

RDT&E activities utilizing active 

acoustic sources. The Navy will provide 

NMFS with species or description of the 

animal (s), the condition of the 

animal(s) (including carcass condition if 

the animal is dead), location, time of 

first discovery, observed behaviors (if 

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

The Stranding Response Plan contains 

more specific reporting requirements for 

specific circumstances. 

Annual Report 

The Navy will submit its first annual 

report to the Office of Protected 

Resources, NMFS, no later than 120 

days before the expiration of the LOA. 

These reports will, at a minimum, 

include the following information: 

32298 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

• The estimated number of hours of 

sonar and other operations involving 

active acoustic sources, broken down by 

source type. 

• If possible, the total number of 

hours of observation effort (including 

observation time when sonar was not 

operating). 

• A report of all marine mammal 

sightings (at any distance) to include, 

when possible and to the best of their 

ability, and if not classified: 

—Species. 

—Number of animals sighted. 

—Location of marine mammal sighting. 

—Distance of animal from any operating 

sonar sources. 

—Whether animal is fore, aft, port, 

starboard. 

—Direction animal is moving in relation 

to source (away, towards, parallel). 

—Any observed behaviors of marine 

mammals. 

• The status of any sonar sources 

(what sources were in use) and whether 

or not they were powered down or shut 

down as a result of the marine mammal 

observation. 

• The platform that the marine 

mammals were sighted from. 

Keyport Range Complex 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 test 

activities involving active acoustic 

sources for which annual reports are 

required as described above. This report 

will be submitted at the end of the 

fourth year of the rule (anticipated to be 

December 2013), 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. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

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

of Level B harassment takes alone is not 

enough information on which to base an 

impact determination. 

In addition to considering estimates of 

the number of marine mammals that 

might be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), as well as the number 

and nature of estimated Level A takes, 

the number of estimated mortalities, and 

effects on habitat. 

The Navy’s specified activities have 

been described based on best estimates 

of the planned RDT&E activities the 

Navy would conduct within the 

proposed NAVSEA NUWC Keyport 

Range Complex Extension. The acoustic 

sources proposed to be used in the 

NAVSEA NUWC Keyport Range 

Complex Extension are low intensity 

and total proposed sonar operation 

hours are under 1,570 hours. Taking the 

above into account, along with the fact 

that NMFS anticipates no mortalities 

and injuries to result from the action, 

the fact that there are no specific areas 

of reproductive importance for marine 

mammals recognized within the 

Keyport Range Complex Extension 

study area, the sections discussed 

below, and dependent upon the 

implementation of the proposed 

mitigation measures, NMFS has 

determined that Navy RDT&E activities 

utilizing underwater acoustic sources 

will have a negligible impact on the 

affected marine mammal species and 

stocks present in the proposed action 

area. 

Behavioral Harassment 

As discussed in the Potential Effects 

of Exposure of Marine Mammals to 

HFAS/MFAS and illustrated in the 

conceptual framework, marine 

mammals can respond to HFAS/MFAS 

in many different ways, a subset of 

which qualifies as harassment. One 

thing that the take estimates do not take 

into account is the fact that most marine 

mammals will likely avoid strong sound 

sources to some extent. Although an 

animal that avoids the sound source 

will likely still be taken in some 

instances (such as if the avoidance 

results in a missed opportunity to feed, 

interruption of reproductive behaviors, 

etc.) in other cases avoidance may result 

in fewer instances of take than were 

estimated or in the takes resulting from 

exposure to a lower received level than 

was estimated, which could result in a 

less severe response. The Keyport Range 

Complex application involves midfrequency and high frequency active 

sonar operations shown in Table 2, and 

none of the tests would involve 

powerful tactical sonar such as the 53C 

series MFAS. Therefore, any 

disturbance to marine mammals 

resulting from MFAS and HFAS in the 

proposed Keyport Range Complex 

RDT&E activities is expected to be 

significantly less in terms of severity 

when compared to major sonar exercises 

(e.g., AFAST, HRC, SOCAL). In 

addition, high frequency signals tend to 

have more attenuation in the water 

column and are more prone to lose their 

energy during propagation. Therefore, 

their zones of influence are much 

smaller, thereby making it easier to 

detect marine mammals and prevent 

adverse effects from occurring. 

There is little information available 

concerning marine mammal reactions to 

MFAS/HFAS. The Navy has only been 

conducting monitoring activities since 

2006 and has not compiled enough data 

to date to provide a meaningful picture 

of effects of HFAS/MFAS on marine 

mammals, particularly in the Keyport 

Range Complex Study Area. From the 

four major training exercises (MTEs) of 

HFAS/MFAS in the AFAST Study Area 

for which NMFS has received a 

monitoring report, no instances of 

obvious behavioral disturbance were 

observed by the Navy watchstanders in 

the 700+ hours of effort in which 79 

sightings of marine mammals were 

made (10 during active sonar operation). 

One cannot conclude from these results 

that marine mammals were not harassed 

from HFAS/MFAS, as a portion of 

animals within the area of concern may 

not have been seen (especially those 

more cryptic, deep-diving species, such 

as beaked whales or Kogia sp.) and some 

of the non-biologist watchstanders 

might not have had the expertise to 

characterize behaviors. However, the 

data demonstrate that the animals that 

were observed did not respond in any 

of the obviously more severe ways, such 

as panic, aggression, or anti-predator 

response. 

In addition to the monitoring that will 

be required pursuant to these 

regulations and subsequent LOAs, 

which is specifically designed to help 

us better understand how marine 

mammals respond to sound, the Navy 

and NMFS have developed, funded, and 

begun conducting a controlled exposure 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32299 

experiment with beaked whales in the 

Bahamas. 

Diel Cycle 

As noted previously, many animals 

perform vital functions, such as feeding, 

resting, traveling, and socializing on a 

diel cycle (24-hr cycle). Substantive 

behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

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

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). 

In the previous section, we discussed 

the fact that potential behavioral 

responses to HFAS/MFAS that fall into 

the category of harassment could range 

in severity. By definition, the takes by 

Level B 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. 

Different sonar testing may not occur 

simultaneously. Some of the marine 

mammals in the Keyport Range 

Complex Study Area are residents and 

others would not likely remain in the 

same area for successive days, it is 

unlikely that animals would be exposed 

to HFAS/MFAS at levels or for a 

duration likely to result in a substantive 

response that would then be carried on 

for more than one day or on successive 

days. 

TTS 

NMFS and the Navy have estimated 

that individuals of some species of 

marine mammals may sustain some 

level of TTS from HFAS/MFAS 

operations. As mentioned previously, 

TTS can last from a few minutes to 

days, be of varying degree, and occur 

across various frequency bandwidths. 

The TTS sustained by an animal is 

primarily classified by three 

characteristics: 

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

mid to high frequency sounds—Southall 

et al., 2007) suggest that most TTS 

occurs in the frequency range of the 

source up to one octave higher than the 

source (with the maximum TTS at 1⁄2

octave above). 

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

dB is the sensitivity of the hearing 

reduced by)—generally, both the degree 

of TTS and the duration of TTS will be 

greater if the marine mammal is exposed 

to a higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

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

sonars is 195 dB (SEL), which might be 

received at distances of up to 275–500 

m from the most powerful MFAS 

source, the AN/SQS–53 (the maximum 

ranges to TTS from other sources would 

be less). An animal would have to 

approach closer to the source or remain 

in the vicinity of the sound source 

appreciably longer to increase the 

received SEL, which would be difficult 

considering the marine observers and 

the nominal speed of a sonar vessel (10– 

12 knots). Of all TTS studies, some 

using exposures of almost an hour in 

duration or up to 217 dB 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 dB SEL, almost 

all recovered within 1 day (or less, often 

in minutes), though in one study 

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

days. 

Based on the range of degree and 

duration of TTS reportedly induced by 

exposures to non-pulse sounds of 

energy higher than that to which freeswimming marine mammals in the field 

are likely to be exposed during HFAS/ 

MFAS testing activities, it is unlikely 

that marine mammals would sustain a 

TTS from MFAS that alters their 

sensitivity by more than 20 dB for more 

than a few days (and the majority would 

be far less severe). Also, for the same 

reasons discussed in the Diel Cycle 

section, and because of the short 

distance within which animals would 

need to approach the sound source, it is 

unlikely that animals would be exposed 

to the levels necessary to induce TTS in 

subsequent time periods such that their 

recovery were impeded. Additionally, 

though the frequency range of TTS that 

marine mammals might sustain would 

overlap with some of the frequency 

ranges of their vocalization types, the 

frequency range of TTS from MFAS (the 

source from which TTS would more 

likely be sustained because the higher 

source level and slower attenuation 

make it more likely that an animal 

would be exposed to a higher level) 

would not usually span the entire 

frequency range of one vocalization 

type, much less span all types of 

vocalizations. 

Acoustic Masking or Communication 

Impairment 

As discussed above, it is also possible 

that anthropogenic sound could result 

in masking of marine mammal 

communication and navigation signals. 

However, masking only occurs during 

the time of the signal (and potential 

secondary arrivals of indirect rays), 

versus TTS, which occurs continuously 

for its duration. Masking effects from 

HFAS/MFAS 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 

HFAS/MFAS signal does not perfectly 

mimic the characteristics of any marine 

mammal’s vocalizations. 

PTS, Injury, or Mortality 

The Navy’s model estimated that no 

marine mammal would be taken by 

Level A harassment (injury, PTS 

included) or mortality due to the low 

intensity of the active sound sources 

being used. 

Based on the aforementioned 

assessment, NMFS preliminarily 

determines that there would be the 

following number of takes: 11,283 

harbor porpoises, 44 northern fur seals, 

114 California sea lions, 14 northern 

elephant seals, and 5,569 (5,468 

Washington Inland Waters stock and 

101 Oregon/Washington Coastal stock) 

harbor seals at Level B harassment (TTS 

and sub-TTS) as a result of the proposed 

Keyport Range Complex RDT&E sonar 

testing activities. These numbers do not 

represent the number of individuals that 

would be taken, since it’s most likely 

that many individual marine mammals 

would be taken multiple times. 

However, under the worst case scenario 

that each animal is taken only once, it 

is expected that these take numbers 

represent approximately 29.89%, 

0.01%, 0.05%, 0.01%, 37.42%, and 

0.41% of the Oregon/Washington 

Coastal stock harbor porpoises, Eastern 

Pacific stock northern fur seals, U.S. 

stock California sea lions, California 

breeding stock northern elephant seals, 

Washington Inland Waters stock harbor 

seals, and Oregon/Washington Coastal 

stock harbor seals, respectively, in the 

vicinity of the proposed Keyport Range 

Complex Study Area (calculation based 

32300 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

on NMFS 2007 U.S. Pacific Marine 

Mammal Stock Assessments and 2007 

U.S. Alaska Marine Mammal Stock 

Assessments). 

No Level A take (injury, PTS 

included) or mortality would occur as 

the result of the proposed RDT&E and 

range extension activities for the 

Keyport Range Complex. 

Based on these analyses, NMFS has 

preliminarily determined that the total 

taking over the 5-year period of the 

regulations and subsequent LOAs from 

the Navy’s NAVSEA NUWCX Keyport 

Range Complex RDT&E and range 

extension activities will have a 

negligible impact on the marine 

mammal species and stocks present in 

the Keyport Range Complex Study Area. 

Subsistence Harvest of Marine 

Mammals 

NMFS has preliminarily determined 

that the total taking of marine mammal 

species or stocks from the Navy’s 

mission activities in the Keyport Range 

Complex study area would not have an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence uses, since there 

are no such uses in the specified area. 

ESA 

There are eight marine mammal 

species/stocks over which NMFS has 

jurisdiction that are listed as 

endangered or threatened under the 

ESA that could occur in the NAVSEA 

NUWCX Keyport Range Complex study 

area: Blue whales, fin whales, sei 

whales, humpback whales, North 

Pacific right whales, sperm whales, 

Southern Resident killer whales, and 

Steller sea lions. The Navy has begun 

consultation with NMFS pursuant to 

section 7 of the ESA, and NMFS will 

also consult internally on the issuance 

of regulations and LOAs under section 

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

activities in the Keyport Range Complex 

study area. Consultation will be 

concluded prior to a determination on 

the issuance of a final rule and an LOAs. 

NEPA 

The Navy is preparing an 

Environmental Impact Statement (EIS) 

for the proposed Keyport Range 

Complex RDT&E and range extension 

activities. A draft EIS was released for 

public comment from September 12– 

October 27, 2008 and is available at 

http://www-keyport.kpt.nuwc.navy.mil. 

NMFS is a cooperating agency (as 

defined by the Council on 

Environmental Quality (40 CFR 1501.6)) 

in the preparation of the EIS. NMFS has 

reviewed the Draft EIS and will be 

working with the Navy on the Final EIS 

(FEIS). 

NMFS intends to adopt the Navy’s 

FEIS, if adequate and appropriate, and 

we believe that the Navy’s FEIS will 

allow NMFS to meet its responsibilities 

under NEPA for the issuance of the 5- 

year regulations and LOAs (as 

warranted) for mission activities in the 

Keyport Range Complex study area. If 

the Navy’s FEIS is not adequate, NMFS 

would supplement the existing analysis 

and documents to ensure that we 

comply with NEPA prior to the issuance 

of the final rule and LOA. 

Preliminary Determination 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and dependent upon 

the implementation of the mitigation 

and monitoring measures, NMFS 

preliminarily finds that the total taking 

from NAVSEA NUWC Keyport Range 

Complex RDT&E and range extension 

activities utilizing active acoustic 

sources in the NAVSEA NUWC Keyport 

Range Complex study area will have a 

negligible impact on the affected marine 

mammal species or stocks. NMFS has 

proposed regulations for these exercises 

that prescribe the means of effecting the 

least practicable adverse impact on 

marine mammals and their habitat and 

set forth requirements pertaining to the 

monitoring and reporting of such taking. 

Classification 

This action does not contain a 

collection of information requirements 

for purposes of the Paperwork 

Reduction Act. 

This proposed rule has been 

determined by the Office of 

Management and Budget to be not 

significant for purposes of Executive 

Order 12866. 

Pursuant to the Regulatory Flexibility 

Act, the Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The RFA 

requires Federal agencies to prepare an 

analysis of a rule’s impact on small 

entities whenever the agency is required 

to publish a notice of proposed 

rulemaking. However, a Federal agency 

may certify, pursuant to 5 U.S.C. 605(b), 

that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Navy is the sole entity that will be 

affected by this proposed rulemaking, 

not a small governmental jurisdiction, 

small organization or small business, as 

defined by the RFA. This proposed 

rulemaking authorizes the take of 

marine mammals incidental to a 

specified activity. The specified activity 

defined in the proposed rule includes 

the use of active acoustic sources during 

RDT&E activities that are only 

conducted by and for the U.S. Navy. 

Additionally, the proposed regulations 

are specifically written for ‘‘military 

readiness’’ activities, as defined by the 

Marine Mammal Protection Act, as 

amended by the National Defense 

Authorization Act, which means that 

they cannot apply to small businesses. 

Additionally, any requirements imposed 

by a Letter of Authorization issued 

pursuant to these regulations, and any 

monitoring or reporting requirements 

imposed by these regulations, will be 

applicable only to the Navy. Because 

this action, if adopted, would directly 

affect the Navy and not a small entity, 

NMFS concludes the action would not 

result in a significant economic impact 

on a substantial number of small 

entities. Accordingly, no IRFA and none 

has been prepared. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Sonar, Transportation. 

Dated: June 30, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 218 is proposed to be 

amended as follows. 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

1. The authority citation for part 218 

continues to read as follows: 

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

2. Subpart S is added to part 218 to 

read as follows: 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Navy Research, 

Development, Test, and Evaluation 

Activities in the Naval Sea System 

Command Naval Undersea Warfare Center 

Keyport Range Complex and the 

Associated Proposed Extensions Study 

Area 

Sec. 

218.170 Specified activity and specified 

geographical area. 

218.171 Permissible methods of taking. 

218.172 Prohibitions. 

218.173 Mitigation. 

218.174 Requirements for monitoring and 

reporting. 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32301 

218.175 Applications for Letters of 

Authorization. 

218.176 Letters of Authorization. 

218.177 Renewal of Letters of Authorization 

and adaptive management. 

218.178 Modifications to Letters of 

Authorization. 

Subpart S—Taking Marine Mammals 

Incidental to U.S. Navy Research, 

Development, Test, and Evaluation 

Activities in the Naval Sea System 

Command (NAVSEA) Naval Undersea 

Warfare Center (NUWC) Keyport Range 

Complex and the Associated Proposed 

Extensions Study Area 

§ 218.170 Specified activity and specified 

geographical area. 

(a) Regulations in this subpart apply 

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

marine mammals that occur 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) These regulations apply only to 

the taking of marine mammals by the 

Navy that occurs within the Keyport 

Range Complex Action Area, which 

includes the extended Keyport Range 

Site, the extended DBRC Range 

Complex (DBRC) Site, and the extended 

Quinault Underwater Tracking Range 

(QUTR) Site, as presented in the Navy’s 

LOA application. The NAVSEA NUWC 

Keyport Range Complex is divided into 

open ocean/offshore areas and in-shore 

areas: 

(1) Open Ocean Area—air, surface, 

and subsurface areas of the NAVSEA 

NUWC Keyport Range Complex 

Extension that lie outside of 12 nautical 

miles (nm) from land. 

(2) Offshore Area—air, surface, and 

subsurface ocean areas within 12 nm of 

the Pacific Coast. 

(3) In-shore—air, surface, and 

subsurface areas within the Puget 

Sound, Port Orchard Reach, Hood 

Canal, and Dabob Bay. 

(c) These regulations apply only to the 

taking of marine mammals by the Navy 

if it occurs incidental to the following 

activities within the designated amounts 

of use: 

(1) Range Activities Using Active 

Acoustic Devices: 

(i) General range tracking: Narrow 

frequency output between 10 to 100 kHz 

with source levels (SL) between 195– 

203 dB re 1 microPa-m. 

(ii) UUV Tracking Systems: Operating 

frequency of 10 to 100 kHz with SLs less 

than 195 dB re 1 microPa-m at all range 

sites. 

(iii) Torpedo Sonars: Operating 

frequency from 10 to 100 kHz with SL 

under 233 dB re 1 microPa-m. 

(iv) Range Targets and Special Test 

Systems: 5 to 100 kHz frequency range 

with a SL less than 195 dB re 1 microPam at the Keyport Range Site and SL less 

than 238 dB re microPa-m at the DBRC 

and QUTR sites. 

(v) Special Sonars: Frequencies vary 

from 100 to 2,500 kHz with SL less than 

235 dB re 1 microPa-m. 

(vi) Sonobuoys and Helicopter 

Dipping Sonar: Operate at frequencies of 

2 to 20 kHz with SLs of less than 225 

dB re 1 microPa-m. 

(vii) Side Scan Sonar: Multiple 

frequencies typically at 100 to 700 kHz 

with SLs less than 235 dB re 1 microPam. 

(viii) Other Acoustic Sources: 

(A) Acoustic Modems: Emit pulses at 

frequencies from 10 to 300 kHz with SLs 

less than 210 dB re 1 microPa-m. 

(B) Target Simulators: Operate at 

frequencies of 100 Hz to 10 kHz at 

source levels of less than 170 dB re 1 

microPa-m. 

(C) Aids to Navigation: Operate at 

frequencies of 70 to 80 kHz at SLs less 

than 210 dB re 1 microPa-m. 

(D) Subbottom Profilers: Operate at 2 

to 7 kHz at SLs less than 210 dB re 1 

microPa-m, and 35 to 45 kHz at SLs less 

than 220 dB re 1 microPa-m. 

(E) Surface Vessels, Submarines, 

Torpedoes, and Other UUVs: Acoustic 

energy from engines usually from 50 Hz 

to 10 kHz at SLs less than 170 dB re 1 

microPa-m. 

(2) Increased Tempo and Activities 

due to Range Extension: Proposed 

annual range activities and operations 

as listed in the following table: 

32302 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

§ 218.171 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

218.176 of this chapter, the Holder of 

the Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.170(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 

§ 218.170(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 § 218.170(c) is limited to the 

following species, by Level B 

harassment only and the indicated 

number of times: 

(1) Harbor porpoise (Phocoena 

phocoena)—56,415 (an average of 

11,283 annually), 

(2) Northern fur seal (Callorhinus 

ursinus)—220 (an average of 44 

annually); 

(3) California sea lion (Zalophus 

californianus)—570 (an average of 114 

annually); 

(4) Northern elephant seal (Mirounga 

angustirostris)—70 (an average of 14 

annually); 

(5) Harbor seal (Phoca vitulina 

richardsi) (Washington Inland Waters 

stock)—27,340 (an average of 5,468 

annually); and 

(6) Harbor seal (P. v. richardsi) 

(Oregon/Washington Coastal stock)— 

505 (an average of 101 annually); 

§ 218.172 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.171 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.176, no person in connection 

with the activities described in 

§ 218.170 may: 

(a) Take any marine mammal not 

specified in § 218.171(b); 

(b) Take any marine mammal 

specified in § 218.171(b) other than by 

incidental take as specified in § 218.171 

(b); 

(c) Take a marine mammal specified 

in § 218.171(b) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

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

terms, conditions, and requirements of 

these regulations or a Letter of 

Authorization issued under § 216.106 of 

this chapter and § 218.176. 

§ 218.173 Mitigation. 

When conducting RDT&E activities 

identified in § 218.170(c), the mitigation 

measures contained in this subpart and 

subsequent Letters of Authorization 

issued under § 216.106 of this chapter 

and § 218.176 must be implemented. 

These mitigation measures include, but 

are not limited to: 

(a) Marine mammal observers 

training: 

(1) All range personnel shall be 

trained in marine mammal recognition. 

(2) Marine mammal observer training 

shall be conducted by qualified 

organizations approved by NMFS. 

(b) Lookouts onboard vessels: 

(1) Vessels on a range shall use 

lookouts during all hours of range 

activities. 

(2) Lookout duties include looking for 

marine mammals. 

(3) All sightings of marine mammals 

shall be reported to the Range Officer in 

charge of overseeing the activity. 

(c) Visual surveillance shall be 

conducted just prior to all in-water 

exercises. 


EP07JY09.011</GPH>
Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32303 

(1) Surveillance shall include, as a 

minimum, monitoring from all 

participating surface craft and, where 

available, adjacent shore sites. 

(2) When cetaceans have been sighted 

in the vicinity of the operation, all range 

participants increase vigilance and take 

reasonable and practicable actions to 

avoid collisions and activities that may 

result in close interaction of naval assets 

and marine mammals. 

(3) Actions may include changing 

speed and/or direction, subject to 

environmental and other conditions 

(e.g., safety, weather). 

(d) An ‘‘exclusion zone’’ shall be 

established and surveillance will be 

conducted to ensure that there are no 

marine mammals within this exclusion 

zone prior to the commencement of 

each in-water exercise. 

(1) For cetaceans, the exclusion zone 

shall extend out 1,000 yards (914.4 m) 

from the intended track of the test unit. 

(2) For pinnipeds, the exclusion zone 

shall extend out 100 yards (91 m) from 

the intended track of the test unit. 

(e) Range craft shall not approach 

within 100 yards (91 m) of marine 

mammals, to the extent practicable 

considering human and vessel safety 

priorities. This includes marine 

mammals ‘‘hauled-out’’ on islands, 

rocks, and other areas such as buoys. 

(f) In the event of a collision between 

a Navy vessel and a marine mammal, 

NUWC Keyport activities shall notify 

immediately the Navy chain of 

Command, which shall notify NMFS 

immediately. 

(g) Passive acoustic monitoring shall 

be utilized to detect marine mammals in 

the area before and during activities. 

(h) Procedures for reporting marine 

mammal sightings on the NAVSEA 

NUWC Keyport Range Complex shall be 

promulgated, and sightings shall be 

entered into the Range Operating 

System and forwarded to NOAA/NMML 

Platforms of Opportunity Program. 

§ 218.174 Requirements for monitoring 

and reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.176 

for activities described in § 218.170(c) is 

required to cooperate with the NMFS 

when monitoring the impacts of the 

activity on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.170(c) is thought to have resulted 

in the mortality or injury of any marine 

mammals, or in any take of marine 

mammals not identified or authorized in 

§ 218.171(c). 

(c) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the NAVSEA 

NUWC Keyport Range Complex 

Monitoring Plan, which is incorporated 

herein by reference, and which requires 

the Navy to implement, at a minimum, 

the monitoring activities summarized 

below: 

(1) Visual Surveys: 

(i) The Holder of this Authorization 

shall conduct a minimum of 2 special 

visual surveys per year to monitor 

HFAS and MFAS respectively at the 

DBRC Range site. 

(ii) For specified events, shore-based 

and vessel surveys shall be used 1 day 

prior to and 1–2 days post activity. 

(A) Shore-based Surveys: 

(1) Shore-based monitors shall 

observe test events that are planned in 

advance to occur adjacent to near shore 

areas where there are elevated 

topography or coastal structures, and 

shall use binoculars or theodolite to 

augment other visual survey methods. 

(2) Shore-based surveys of the test 

area and nearby beaches shall be 

conducted for stranded marine animals 

following nearshore events. If any 

distressed, injured or stranded animals 

are observed, an assessment of the 

animal’s condition (alive, injured, dead, 

or degree of decomposition) shall be 

reported immediately to the Navy and 

the information shall be transmitted 

immediately to NMFS through the 

appropriate chain of command. 

(B) Vessel-based Surveys: 

(1) Vessel-based surveys shall be 

designed to maximize detections of 

marine mammals near mission activity 

event. 

(2) Post-analysis shall focus on how 

the location, speed and vector of the 

range craft and the location and 

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

surface vessel) relates to the animal. 

(3) Any other vessels or aircraft 

observed in the area shall also be 

documented. 

(iii) Surveys shall include the range 

site with special emphasis given to the 

particular path of the test run. When 

conducting a particular survey, the 

survey team shall collect the following 

information. 

(A) Species identification and group 

size; 

(B) Location and relative distance 

from the acoustic source(s); 

(C) The behavior of marine mammals 

including standard environmental and 

oceanographic parameters; 

(D) Date, time and visual conditions 

associated with each observation; 

(E) Direction of travel relative to the 

active acoustic source; and 

(F) Duration of the observation. 

(iv) Animal sightings and relative 

distance from a particular active 

acoustic source shall be used postsurvey to determine potential received 

energy (dB re 1 micro Pa-sec). This data 

shall be used, post-survey, to estimate 

the number of marine mammals 

exposed to different received levels 

(energy based on distance to the source, 

bathymetry, oceanographic conditions 

and the type and power of the acoustic 

source) and their corresponding 

behavior. 

(2) Passive Acoustic Monitoring 

(PAM): 

(i) The Navy shall deploy a 

hydrophone array in the Keyport Range 

Complex Study Area for PAM. 

(ii) The array shall be utilized during 

the two special monitoring surveys in 

DBRC as described in § 218.174(c)(1)(i). 

(iii) The array shall have the 

capability of detecting low-frequency 

vocalizations (<1,000 Hz) for baleen 

whales and relatively high frequency 

(up to 30 kHz) for odontocetes. 

(iv) Acoustic data collected from the 

PAM shall be used to detect acoustically 

active marine mammals as appropriate. 

(3) Marine Mammal Observers on 

range craft or Navy vessels: 

(i) Navy Marine mammal observers 

(NMMOs) may be placed on a range 

craft or Navy platform during the event 

being monitored. 

(ii) The NMMO must possess 

expertise in species identification of 

regional marine mammal species and 

experience collecting behavioral data. 

(iii) NMMOs may be placed alongside 

existing lookouts during the two 

specified monitoring events as 

described in § 218.174(c)(1)(i). 

(iv) NMMOs shall inform the lookouts 

of any marine mammal sighting so that 

appropriate action may be taken by the 

chain of command. NMMOs shall 

schedule their daily observations to 

duplicate the lookouts’ schedule. 

(v) NMMOs shall observe from the 

same height above water as the 

lookouts, and they shall collect the same 

data collected by lookouts listed in 

§ 218.174(c)(1)(iii). 

(d) The Navy shall complete an 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan in 2009. This 

planning and adaptive management tool 

shall include: 

(1) A method for prioritizing 

monitoring projects that clearly 

describes the characteristics of a 

proposal that factor into its priority. 

(2) A method for annually reviewing, 

with NMFS, monitoring results, Navy 

R&D, and current science to use for 

potential modification of mitigation or 

monitoring methods. 

32304 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 

(3) A detailed description of the 

Monitoring Workshop to be convened in 

2011 and how and when Navy/NMFS 

will subsequently utilize the findings of 

the Monitoring Workshop to potentially 

modify subsequent monitoring and 

mitigation. 

(4) An adaptive management plan. 

(5) A method for standardizing data 

collection for NAVSEA NUWC Keyport 

Range Complex Extension and across 

range complexes. 

(e) Notification of Injured or Dead 

Marine Mammals—Navy personnel 

shall ensure that NMFS (regional 

stranding coordinator) is notified 

immediately (or as soon as clearance 

procedures allow) if an injured or dead 

marine mammal is found during or 

shortly after, and in the vicinity of, any 

Navy training exercise utilizing 

underwater explosive detonations. The 

Navy shall provide NMFS with species 

or description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). 

(f) Annual Keyport Range Complex 

Monitoring Plan Report—The Navy 

shall submit a report annually on 

December 1 describing the 

implementation and results (through 

September 1 of the same year) of the 

Keyport Range Complex Monitoring 

Plan. Data collection methods will be 

standardized across range complexes to 

allow for comparison in different 

geographic locations. Although 

additional information will also be 

gathered, the NMMOs collecting marine 

mammal data pursuant to the Keyport 

Range Complex Monitoring Plan shall, 

at a minimum, provide the same marine 

mammal observation data required in 

§ 218.174(c). The Keyport Range 

Complex Monitoring Plan Report may 

be provided to NMFS within a larger 

report that includes the required 

Monitoring Plan Reports from Keyport 

Range Complex and multiple range 

complexes. 

(g) Keyport Range Complex 5-yr 

Comprehensive Report—The Navy shall 

submit to NMFS a draft comprehensive 

report that analyzes and summarizes all 

of the multi-year marine mammal 

information gathered during tests 

involving active acoustic sources for 

which individual reports are required in 

§ 218.174(d–f). This report will be 

submitted at the end of the fourth year 

of the rule (June 2013), covering 

activities that have occurred through 

September 1, 2013. 

(h) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

Keyport Range Complex Extension 

Comprehensive Report, the Annual 

Keyport Range Complex Monitoring 

Plan Report (or the multi-Range 

Complex Annual Monitoring Report, if 

that is how the Navy chooses to submit 

the information) if submitted within 3 

months of receipt. The report will be 

considered final after the Navy has 

addressed NMFS’ comments, or three 

months after the submittal of the draft 

if NMFS does not comment by then. 

(i) In 2011, the Navy shall convene a 

Monitoring Workshop in which the 

Monitoring Workshop participants will 

be asked to review the Navy’s 

Monitoring Plans and monitoring results 

and make individual recommendations 

(to the Navy and NMFS) of ways of 

improving the Monitoring Plans. The 

recommendations shall be reviewed by 

the Navy, in consultation with NMFS, 

and modifications to the Monitoring 

Plan shall be made, as appropriate. 

§ 218.175 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations for the 

activities identified in § 218.170(c), the 

U.S. Navy must apply for and obtain 

either an initial Letter of Authorization 

in accordance with § 218.176 or a 

renewal under § 218.177. 

§ 218.176 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.177. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

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

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 218.177 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.176 for the 

activity identified in § 218.170(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.175 shall be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Timely receipt of the monitoring 

reports required under § 218.174(b); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.173 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.176, were 

undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 218.177 indicates that a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, the NMFS 

will provide the public a period of 30 

days for review and comment on the 

request. Public comment on renewals of 

Letters of Authorization are restricted 

to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from Keyport Range Complex 

Study Area or other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.174(i)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.174(d)). 

(4) Results from specific stranding 

investigations (either from the Keyport 

Range Complex Study Area or other 

locations). 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules 32305 

(5) Results from the Long Term 

Prospective Study described in the 

preamble to these regulations. 

(6) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(7) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 218.178 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section and § 218.177(d), no 

substantive modification (including 

withdrawal or suspension) to the Letter 

of Authorization by NMFS, issued 

pursuant to § 216.106 of this chapter 

and § 218.176 and subject to the 

provisions of this subpart shall be made 

until after notification and an 

opportunity for public comment has 

been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.177, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

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

mammals specified in § 218.171(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and 

§ 218.176 may be substantively 

modified without prior notification and 

an opportunity for public comment. 

Notification will be published in the 

Federal Register within 30 days 

subsequent to the action. 

[FR Doc. E9–15839 Filed 6–30–09; 4:15 pm] 

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