[Federal Register Volume 74, Number 132 (Monday, July 13, 2009)]
[Proposed Rules]
[Pages 33828-33900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16301]



[[Page 33827]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 218



Taking and Importing Marine Mammals; Navy Training Activities Conducted 
Within the Northwest Training Range Complex; Proposed Rule

Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 0906101030-91038-01]
RIN 0648-AX88


Taking and Importing Marine Mammals; Navy Training Activities 
Conducted Within the Northwest Training Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take marine mammals incidental to training activities 
conducted in the Northwest Training Range Complex (NWTRC), off the 
coasts of Washington, Oregon, and northern California, for the period 
of February 2010 through February 2015 (updated from initial request 
for October 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 
12, 2009.

ADDRESSES: You may submit comments, identified by 0648-AX88, by any one 
of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> 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: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of the Navy's application may be obtained by writing to the 
address specified above (See ADDRESSES), telephoning the contact listed 
above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
The Navy's Draft Environmental Impact Statement (DEIS) for NWTRC was 
published on December 29 2008, and may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS is 
participating in the development of the Navy's EIS as a cooperating 
agency under NEPA.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as:

    ``An impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''

    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) modified the MMPA by removing the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or
    (ii) Any act that disturbs or is likely to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
natural behavioral patterns, including, but not limited to, 
migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or 
significantly altered [Level B Harassment].

    In January 2009, the Council on Environmental Quality requested 
that NOAA conduct a comprehensive review of the Navy's mitigation 
measures applicable to the use of sonar in it's training activities.

Summary of Request

    In September 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 26 species of 
marine mammals incidental to upcoming Navy training activities to be 
conducted within the NWTRC, which extends west to 250 nautical miles 
(nm) (463 kilometers [km]) beyond the coast of Northern California, 
Oregon, and Washington and east to Idaho and encompasses 122,400 
nm<SUP>2</SUP> (420,163 km<SUP>2</SUP>) of surface/subsurface ocean 
operating areas. These training activities are military readiness 
activities under the provisions of the NDAA. The Navy states, and NMFS 
concurs, that these military readiness activities may incidentally take 
marine mammals present within the NWTRC by exposing them to sound from 
mid-frequency or high frequency active sonar (MFAS/HFAS) or underwater 
detonations. The Navy requests authorization to take individuals of 26 
species of marine mammals by Level B Harassment and 14 individuals of 
10 species by Level A Harassment. The Navy's model, which did not 
factor in any potential benefits of mitigation measures, predicted that 
14 individual marine mammals would be exposed to levels of sound or 
pressure that would result in injury; thus, NMFS is proposing to 
authorize the take, by Level A Harassment of 14 individuals. However, 
NMFS and the Navy have determined preliminarily that injury can be 
avoided through the implementation of the Navy's proposed mitigation 
measures. NMFS neither anticipates, nor does it propose to authorize 
mortality of marine mammals incidental to naval exercises in the NWTRC.

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Background of Request

    The Navy's mission is to maintain, train, and equip combat-ready 
naval forces capable of winning wars, deterring aggression, and 
maintaining freedom of the seas. Section 5062 of Title 10 of the United 
States Code directs the Chief of Naval Operations to train all naval 
forces for combat. The Chief of Naval Operations meets that direction, 
in part, by conducting at-sea training exercises and ensuring naval 
forces have access to ranges, operating areas (OPAREAs) and airspace 
where they can develop and maintain skills for wartime missions and 
conduct research, development, testing, and evaluation (RDT&E) of naval 
weapons systems.
    The proposed action would result in selectively focused, but 
critical enhancements and increases in training that are necessary for 
the Navy to maintain a state of military readiness commensurate with 
the national defense mission. The Navy proposes to implement actions 
within the NWTRC to:
    <bullet> Conduct training and Unmanned Aerial Systems (UAS) RDT&E 
activities of the same types as currently conducted, but also;
    <bullet> Increase training activities from current levels as 
necessary in support of the Fleet Response Training Plan (FRTP);
    <bullet> Accommodate force structure changes (new platforms and 
weapons systems); and
    <bullet> Implement range enhancements associated with the NWTRC.
    The proposed action would result in the following increases (above 
those conducted in previous years, i.e., the No Action Alternative in 
the Navy's DEIS) in activities:
    <bullet> Antisubmarine Warfare--10% increase.
    <bullet> Gunnery Exercises--100% increase (increased from 90 to 176 
events).
    <bullet> Bombing Exercises--25% increase (increased from 24 to 30 
sorties).
    <bullet> Sinking Exercises--100% increase (increased from 1 to 2 
exercises).

Overview of the NWTRC

    The U.S. Navy has been training and operating in the area now 
defined as the NWTRC for over 60 years. The NWTRC includes ranges and 
airspace that extend west to 250 nm (463 km) beyond the coast of 
Northern California, Oregon, and Washington and east to Idaho. The 
components of the NWTRC encompass 122,461 nm<SUP>2</SUP> (420,163 
km<SUP>2</SUP>) of surface/subsurface ocean operating areas (OPAREAs), 
46,048 nm<SUP>2</SUP> (157,928 km<SUP>2</SUP>) of special use airspace 
(SUA), and 875 acres (354 hectares) of land. For range management and 
scheduling purposes, the NWTRC is divided into numerous sub-component 
ranges or training areas used to conduct training and RDT&E of military 
hardware, personnel, tactics, munitions, explosives, and electronic 
combat systems, as described in detail in the NWTRC DEIS. As the take 
of marine mammals is inherently tied to the surface/subsurface OPAREAs 
of the NWTRC, only those areas are discussed in more detail below.
    The LOA application includes graphics (Figures 1-1, 2-1, and 2-2) 
that depict the sea, undersea, and air spaces used by the Navy. To aid 
in the description of the range complexes that will be addressed in 
this proposed rule, the ranges are divided into three major geographic 
and functional subdivisions. Each of the depicted individual ranges 
falls into one of these three major range subdivisions:
    The Offshore Area--The Pacific Northwest (PACNW) OPAREA (same 
footprint as Offshore Area) serves as maneuver water space for ships 
and submarines to conduct training and to use as transit lanes. It 
extends from the Strait of Juan de Fuca in the north, to approximately 
50 nm (93 km) south of Eureka, California in the south, and from the 
coast line of Washington, Oregon, and California westward to 130[deg] 
W. longitude. The PACNW OPAREA is approximately 510 nm (945 km) in 
length from the northern boundary to the southern boundary, and 250 nm 
(463 km) from the coastline to the western boundary at 130[deg] W 
longitude. Total surface area of the PACNW OPAREA is 122,400 
nm<SUP>2</SUP> (420,163 km<SUP>2</SUP>).
    Commander Submarine Force, U.S. Pacific Fleet (COMSUBPAC) Pearl 
Harbor manages this water space as transit lanes for U.S. submarines. 
While the sea space is ample for all levels of Navy training, no 
infrastructure is currently in place to support training. There are no 
dedicated training frequencies, no permanent instrumentation, no 
meteorological and oceanographic activities (METOC) system, and no 
Opposition Forces (OPFOR) or Electronic Combat (EC) target systems. In 
this region of the Pacific Ocean, storms and high sea states can create 
challenges to surface ship training between October and April. In 
addition, strong undersea currents in the PACNW make it difficult to 
place permanent bottom-mounted instrumentation such as hydrophones.
    The Offshore Area undersea space lies beneath the PACNW OPAREA as 
described above. The bathymetry chart depicts a 100-fathom (182-m) 
curve parallel to the coastline approximately 12 nm (22 km) to sea, and 
in places 20 nm (37 km) out to sea. The area of deeper water of more 
than 100 fathoms (182 m) is calculated to be approximately 115,800 
nm<SUP>2</SUP> (397,194 km<SUP>2</SUP>), while the shallow water area 
of less than 100 fathoms (600 ft, 182 m) is all near shore and amounts 
to approximately 6,600 nm<SUP>2</SUP> (22,638 km<SUP>2</SUP>).
    The Inshore Area--This area includes all sea and undersea ranges 
and OPAREAs inland of the coastline, including Puget Sound. This area 
is composed of approximately 61 nm<SUP>2</SUP> of surface and 
subsurface area. NWTRC Inshore Areas include land ranges, airspace, and 
two surface/subsurface restricted areas--Navy 7 and 3. Activities 
conducted in each of these areas are not expected to take marine 
mammals, as defined by the MMPA and therefore, and will not be 
discussed further in this proposed rule. Also included in the Inshore 
Area, Explosive Ordnance Disposal (EOD) Ranges are land, sea, and 
undersea ranges used by NSW and EOD forces specifically for EOD 
training and are composed of approximately 0.4 nm<SUP>2</SUP> of 
surface and subsurface area within the area identified as the Inshore 
Area. EOD units located in the NWTRC conduct underwater detonations as 
part of mine countermeasure training. This training is conducted at one 
of three locations: Crescent Harbor Underwater EOD Range, offshore from 
the Seaplane Base at Naval Air Station Whidbey Island; at the Floral 
Point Underwater EOD Range, located in Hood Canal near NAVBASE Kitsap-
Bangor; and the Indian Island Underwater EOD Range, adjacent to Indian 
Island.

Description of Specified Activities

    As mentioned above, the Navy has requested MMPA authorization to 
take marine mammals incidental to training activities in the NWTRC that 
would result in the generation of sound or pressure waves in the water 
at or above levels that NMFS has determined will likely result in take 
(see Acoustic Take Criteria Section), either through the use of MFAS/
HFAS or the detonation of explosives in the water. These activities are 
discussed in the subsections below. In addition to use of active sonar 
sources and explosives, these activities include the operation and 
movement of vessels that are necessary to conduct the training, and the 
effects of this part of the activities are also analyzed in this 
document.
    The Navy's application also briefly summarizes Anti-Air Warfare 
Training, Naval Special Warfare Training and Support Operations; 
however, these activities are primarily land and air based and do not 
utilize sound sources

[[Page 33830]]

or explosives for the portions that are in the water and, therefore, no 
take of marine mammals is anticipated from these activities and they 
are not discussed further.

Activities Utilizing Active Sonar Sources

    For the NWTRC, the training activities that utilize active tactical 
sonar sources fall primarily into the category of Anti-submarine 
Warfare (ASW) exercises (MFAS/HFAS is also used in the mine avoidance 
exercises, which are considered Mine Warfare Training (MIW) activities; 
however, it is in such a small amount that impacts to marine mammals 
are minimal). This section includes a description of ASW, the active 
acoustic devices used in ASW exercises, and the exercise types in which 
these acoustic sources are used. Of note, the use of MFAS/HFAS in the 
NWTRC is minimal as compared to previous rules issued by NMFS 
(approximately 110 hours annual use of the most powerful surface vessel 
sonar versus approximately 2,500 hours annual use of AN/SQS-53C and AN/
SQS-56C sonar in the Southern California Range Complex), does not 
include major exercises that involve the use of more than one surface 
vessel MFAS (AN/SQS-53C or AN/SQS-56C) at a time, and will not occur in 
the inshore area (i.e., inland from the mouth of the Strait of Juan de 
Fuca).

ASW Training and Active Sonar

    ASW involves helicopter and sea control aircraft, ships, and 
submarines, operating alone or in combination, to locate, track, and 
neutralize submarines. Various types of active and passive sonars are 
used by the Navy to determine water depth, locate mines, and identify, 
track, and target submarines. Passive sonar ``listens'' for sound waves 
by using underwater microphones, called hydrophones, which receive, 
amplify and process underwater sounds. No sound is introduced into the 
water when using passive sonar. Passive sonar can indicate the 
presence, character and movement of submarines. However, passive sonar 
provides only a bearing (direction) to a sound-emitting source; it does 
not provide an accurate range (distance) to the source. Also, passive 
sonar relies on the underwater target itself to provide sufficient 
sound to be detected by hydrophones. Active sonar is needed to locate 
objects that emit little or no noise (such as mines or diesel-electric 
submarines operating in electric mode) and to establish both bearing 
and range to the detected contact.
    Active sonar transmits pulses of sound that travel through the 
water, reflect off objects and return to a receiver. By knowing the 
speed of sound in water and the time taken for the sound wave to travel 
to the object and back, active sonar systems can quickly calculate 
direction and distance from the sonar platform to the underwater 
object. There are three types of active sonar: low frequency, mid-
frequency, and high-frequency.
    LFA sonar is not presently utilized in the NWTRC, and is not part 
of the Proposed Action.
    MFAS, as defined in the Navy's NWTRC LOA application, operates 
between 1 and 10 kHz, with detection ranges up to 10 nm (19 km). 
Because of this detection ranging capability, MFAS is the Navy's 
primary tool for conducting ASW. Many ASW experiments and exercises 
have demonstrated that this improved capability for long range 
detection of adversary submarines before they are able to conduct an 
attack is essential to U.S. ship survivability. Today, ASW is the 
Navy's number one war-fighting priority. Navies across the world 
utilize modern, quiet, diesel-electric submarines that pose the primary 
threat to the U.S. Navy's ability to perform a number of critical 
missions. Extensive training is necessary if Sailors, ships, and strike 
groups are to gain proficiency in using MFAS. If a strike group does 
not demonstrate MFAS proficiency, it cannot be certified as combat 
ready.
    HFAS, as defined in the Navy's NWTRC LOA application, operates at 
frequencies greater than 10 kilohertz (kHz). At higher acoustic 
frequencies, sound rapidly dissipates in the ocean environment, 
resulting in short detection ranges, typically less than five nm (9 
km). High-frequency sonar is used primarily for determining water 
depth, hunting mines and guiding torpedoes.

Acoustic Sources Used for ASW Exercises in the NWTRC

    Modern sonar technology has developed a multitude of sonar sensor 
and processing systems. In concept, the simplest active sonars emit 
omni-directional pulses (``pings'') and time the arrival of the 
reflected echoes from the target object to determine range. More 
sophisticated active sonar emits an omni-directional ping and then 
rapidly scans a steered receiving beam to provide directional, as well 
as range, information. More advanced active sonars transmit multiple 
preformed beams, listening to echoes from several directions 
simultaneously and providing efficient detection of both direction and 
range. The types of active sonar sources employed during ASW active 
sonar training exercises in the NWTRC are identified in Table 1.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP13JY09.140

BILLING CODE 3510-22-C
    ASW sonar systems are deployed from certain classes of surface 
ships, submarines, and fixed-wing maritime patrol aircraft (MPA). 
Maritime patrol aircraft is a category of fixed-wing aircraft that 
includes the current P-3C Orion, and the future P-8 Poseidon 
multimission maritime aircraft. No ASW helicopters train in the NWTRC. 
The

[[Page 33832]]

surface ships used are typically equipped with hull-mounted sonars 
(passive and active) for the detection of submarines. Fixed-wing MPA 
are used to deploy both active and passive sonobuoys to assist in 
locating and tracking submarines or ASW targets during the exercise. 
Submarines are equipped with passive sonar sensors used to locate and 
prosecute other submarines and/or surface ships during the exercise. 
The platforms used in ASW exercises are identified below.
    Surface Ship Sonars--A variety of surface ships participate in 
training events. Of the ships that operate in the NWTRC, only two 
classes employ MFAS: the Fast Frigate (FFG) and the Guided Missile 
Destroyer (DDG). These two classes of ship are equipped with active as 
well as passive tactical sonars for mine avoidance and submarine 
detection and tracking. DDG class ships are equipped with the AN/SQS-
53C sonar system (the most powerful system), with a nominal source 
level of 235 decibels (dB) re 1 [mu]Pa @ 1 m. The FFG class ship uses 
the SQS-56 sonar system, with a nominal source level of 225 decibels 
(dB) re 1 [mu]Pa @ 1 m. Sonar ping transmission durations were modeled 
as lasting 1 second per ping and omni-directional, which is a 
conservative assumption that will overestimate potential effects. 
Actual ping durations will be less than 1 second. The AN/SQS-53C hull-
mounted sonar transmits at a center frequency of 3.5 kHz. The SQS-56 
transmits at a center frequency of 7.5 kHz. Details concerning the 
tactical use of specific frequencies and the repetition rate for the 
sonar pings is classified but was modeled based on the required 
tactical training setting.
    Submarine Sonars--Submarine active sonars are not used for ASW 
training in the NWTRC. However, the AN/BQS-15 sonar would be used for 
mine detection training. The AN/BQS-15, installed on guided missile 
nuclear submarines (SSGN) and fast attack nuclear submarines (SSN), 
uses high frequency (> 10 kHz) active sonar to locate mine shapes. A 
total of seven mine avoidance exercises would take place annually in 
the NWTRC. Each exercise would last six hours, for a total of 42 hours 
annually.
    Aircraft Sonar Systems--Sonobuoys are the only aircraft sonar 
systems that would operate in the NWTRC. Sonobuoys are deployed by MPAs 
and are expendable devices used for the detection of submarines. Most 
sonobuoys are passive, but some can generate active acoustic signals, 
as well as listen passively. During ASW training, these systems' active 
modes are used for localization of contacts and are not typically used 
in primary search capacity. The AN/SSQ-62 Directional Command Activated 
Sonobuoy System (DICASS) is the only MFAS sonobuoy used in the NWTRC. 
Because no ASW helicopters train in the NWTRC, no dipping sonar system 
is carried forward for any further analysis of effects.
    Extended Echo Ranging and Improved Extended Echo Ranging (EER/IEER) 
Systems--EER/IEER are airborne ASW systems used to conduct ``large 
area'' searches for submarines. These systems are made up of airborne 
avionics ASW acoustic processing and sonobuoy types that are deployed 
in pairs. The EER/IEER System's active sonobuoy component, the AN/SSQ-
110A Sonobuoy, generates an explosive sound impulse and a passive 
sonobuoy (ADAR, AN/SSQ-101A) would ``listen'' for the return echo that 
has been bounced off the surface of a submarine. These sonobuoys are 
designed to provide underwater acoustic data necessary for naval 
aircrews to quickly and accurately detect submerged submarines. The 
sonobuoy pairs are dropped from a maritime patrol aircraft into the 
ocean in a predetermined pattern with a few buoys covering a very large 
area. The AN/SSQ-110A Sonobuoy Series is an expendable and commandable 
sonobuoy. Upon command from the aircraft, the explosive charge would 
detonate, creating the sound impulse. Within the sonobuoy pattern, only 
one detonation is commanded at a time. Twelve to twenty SSQ-110A source 
sonobuoys are used in a typical exercise. Both charges of each sonobuoy 
would be detonated during the course of the training, either tactically 
to locate the submarine, or when the sonobuoys are commanded to scuttle 
at the conclusion of the exercise. The AN/SSQ-110A is listed in this 
table because it functions like a sonar ping, however, the source 
creates an explosive detonation and its effects are considered in the 
underwater explosive section.
    Advanced Extended Echo Ranging (AEER) System--The proposed AEER 
system is operationally similar to the existing EER/IEER system. The 
AEER system will use the same ADAR sonobuoy (SSQ-101A) as the acoustic 
receiver and will be used for a large area ASW search capability in 
both shallow and deep water. However, instead of using an explosive AN/
SQS-110A as an impulsive source for the active acoustic wave, the AEER 
system will use a battery powered (electronic) source for the AN/SSQ 
125 sonobuoy. The output and operational parameters for the AN/SSQ-125 
sonobuoy (source levels, frequency, wave forms, etc.) are classified. 
However, this sonobuoy is intended to replace the EER/IEER's use of 
explosives and is scheduled to enter the fleet in 2011. Acoustic impact 
analysis for the AN/SSQ-125 in this document assumes a similar per-buoy 
effect as that modeled for the DICASS sonobuoy. For purposes of 
analysis, replacement of the EER/IEER system by the AEER system will be 
assumed to occur at 25% per year as follows: 2011--25% replacement; 
2012--50% replacement; 2013--75% replacement; 2014--100% replacement 
with no further use of the EER/IEER system beginning in 2015 and 
beyond.
    Torpedoes--Torpedoes are the primary ASW weapon used by surface 
ships, aircraft, and submarines. The guidance systems of these weapons 
can be autonomous or electronically controlled from the launching 
platform through an attached wire. The autonomous guidance systems are 
acoustically based. They operate either passively, exploiting the 
emitted sound energy by the target, or actively, ensonifying the target 
and using the received echoes for guidance. The MK-48 submarine-
launched torpedo, used in its anti-surface ship mode, was modeled for 
active sonar transmissions in Sinking Exercises conducted within the 
NWTRC.
    Portable Undersea Tracking Range--The Portable Undersea Tracking 
Range (PUTR) has been developed to support ASW training in areas where 
the ocean depth is between 300 ft and 12,000 ft and at least 3 nm from 
land. This proposed project would temporarily instrument 25-square-mile 
or smaller areas on the seafloor, and would provide high fidelity 
feedback and scoring of crew performance during ASW training 
activities. When training is complete, the PUTR equipment would be 
recovered. All of the potential PUTR areas have been used for ASW 
training for decades.
    No on-shore construction would take place. Seven electronics 
packages, each approximately 3 ft long by 2 ft in diameter, would be 
temporarily installed on the seafloor by a range boat, in water depths 
greater than 600 ft. The anchors used to keep the electronics packages 
on the seafloor would be either concrete or sand bags, approximately 
1.5 ft-by-1.5 ft and 300 pounds. Each package consists of a hydrophone 
that receives pinger signals, and a transducer that sends an acoustic 
``uplink'' of locating data to the range boat. The uplink signal is 
transmitted at 8.8 kilohertz (kHz), 17 kHz, or 40 kHz, at a source 
level of 190 decibels (dB). The Portable Undersea Tracking Range

[[Page 33833]]

system also incorporates an underwater voice capability that transmits 
at 8-11 kHz and a source level of 190 dB. Each of these packages is 
powered by a D cell alkaline battery. After the end of the battery 
life, the electronic packages would be recovered and the anchors would 
remain on the seafloor. The Navy proposes to deploy this system for 3 
months of the year (approximately June-August), and to conduct TRACKEX 
activities for 10 days per month in an area beyond 3 nm from shore. 
During each of the 30 days of annual operation, the PUTR would be in 
use for 5 hours each day. No additional ASW activity is proposed as a 
result of PUTR use. Operation of this range requires that underwater 
participants transmit their locations via pingers and that the 
receiving transducers transmit that information the range boat via the 
Uplink transmitter (see ``Range Tracking Pingers'' and uplink 
transmitter ``below'').
    Range Tracking Pingers--MK-84 range tracking pingers would be used 
on ships, submarines, and ASW targets when ASW TRACKEX training is 
conducted on the PUTR. The MK-84 pinger generates a 12.93 kHz sine wave 
in pulses with a maximum duty cycle of 30 milliseconds (3% duty cycle) 
and has a design power of 194 dB re 1 micro-Pascal at 1 meter. Although 
the specific exercise, and number and type of participants will 
determine the number of pingers in use at any time, a minimum of one 
and a maximum of three pingers would be used for each ASW training 
activity. On average, two pingers would be in use for 3 hours each 
during PUTR operational days.
    Uplink Transmitters--Each package consists of a hydrophone that 
receives pinger signals, and a transducer that sends an acoustic 
``uplink'' of locating data to the range boat. The uplink signal is 
transmitted at 8.8 kilohertz (kHz), 17 kHz, or 40 kHz, at a source 
level of 190 decibels (dB). The Portable Undersea Tracking Range system 
also incorporates an underwater voice capability that transmits at 8-11 
kHz and a source level of 190 dB. Under the proposed action, the uplink 
transmitters would operate 30 days per year, for 5 hours each day of 
use. The total time of use would be 150 hours annually.

Exercises Utilizing MFAS in the NWTRC

    ASW Tracking Exercises are the exercises that primarily utilize 
MFAS and HFAS sources in the NWTRC, although Mine Avoidance MIW 
exercises also utilize a less powerful HFAS source. ASW Tracking 
Exercise (TRACKEX) trains aircraft, ship, and submarine crews in 
tactics, techniques, and procedures for search, detection, 
localization, and tracking of submarines with the goal of determining a 
firing solution that could be used to launch a torpedo and destroy the 
submarine. ASW Tracking Exercises occur during both day and night. A 
typical unit-level exercise involves one (1) ASW unit (aircraft, ship, 
or submarine) versus one (1) target--either a MK-39 Expendable Mobile 
ASW Training Target (EMATT), or a live submarine. The target may be 
non-evading while operating on a specified track or fully evasive. 
Participating units use active and passive sensors, including hull-
mounted sonar, towed arrays, and sonobuoys for tracking. If the 
exercise continues into the firing of a practice torpedo it is termed a 
Torpedo Exercise (TORPEX). The ASW TORPEX usually starts as a TRACKEX 
to achieve the firing solution. No torpedoes are fired during ASW 
training conducted in the NWTRC. The exercise types that utilize MFAS/
HFAS are described below and summarized in Table 2, which also includes 
a summary of the exercise types utilizing explosives.
    ASW TRACKEX (Maritime Patrol Aircraft)--During an ASW TRACKEX 
(MPA), a typical scenario would involve a single MPA dropping 
sonobuoys, from an altitude below 3,000 ft (914 m) above mean sea level 
(MSL), and sometimes as low as 400 ft (122 m), into specific patterns 
designed for both the anticipated threat submarine and the specific 
water conditions. These patterns vary in size and coverage area based 
on the threat and water conditions.
    Typically, passive sonobuoys will be used first, so the threat 
submarine is not alerted. Active buoys will be used as required either 
to locate extremely quiet submarines, or to further localize and track 
submarines previously detected by passive buoys. A TRACKEX (MPA) 
usually takes two to four hours. The P-8 Multi-mission Maritime 
Aircraft (MMA), a modified Boeing 737 that is the Navy's replacement 
for the aging P-3 Orion aircraft, is a long-range aircraft that is 
capable of broad-area, maritime and littoral activities. As P-8 live 
training is expected to be supplemented with virtual training to a 
greater degree than P-3 training, P-8 training activities in the NWTRC 
are likely to be less numerous than those currently conducted by P-3 
aircraft crews. P-3 replacement is expected to begin by 2013. None of 
the potential marine mammal impacts associated with the P-3 aircraft 
are expected to differ as a result of the P-3 being replaced by the 
MMA.
    ASW TRACKEX (EER/IEER or AEER)--This activity is an at-sea flying 
event, typically conducted below 3,000 ft (914 m) MSL, that is designed 
to train P-3 crews in the deployment and use of the EER/IEER (and in 
the future, AEER) sonobuoy systems. These systems use the SSQ-110A as 
the signal source and the SSQ-77 (VLAD) as the receiver buoy. The 
signal source is a small explosive charge that detonates underwater. 
The SSQ-110A sonobuoy has two charges, each being individually 
detonated during the exercise. This activity typically lasts six hours, 
with one hour for buoy pattern deployment and five hours for active 
search. Between 12 and 20 SSQ-110A source sonobuoys and approximately 
20 SSQ-77 passive sonobuoys are used in a typical exercise.
    ASW TRACKEX (Surface Ship)--In the PACNW OPAREA, locally based 
surface ships do not routinely conduct ASW Tracking exercises. However, 
MFAS is used during ship transits through the OPAREA. In a typical 
year, 24 DDG ship transits and 36 FFG transits will take place, with 
1.5 hours of active sonar use during each transit. All surface ship 
MFAS use is documented in this training activity description. 10% of 
surface ship MFAS used in NWTRC is training associated with the PUTR.
    ASW TRACKEX (Submarine)--ASW TRACKEX is a primary training exercise 
for locally based submarines. Training is conducted within the NWTRC 
and involves aircraft approximately 30% of the time. Training events in 
which aircraft are used typically last 8 to 12 hours. During these 
activities submarines use passive sonar sensors to search, detect, 
classify, localize and track the threat submarine with the goal of 
developing a firing solution that could be used to launch a torpedo and 
destroy the threat submarine. However, no torpedoes are fired during 
this training activity. All submarine ASW TRACKEX conducted in the 
NWTRC is passive only; therefore, these activities are not carried 
forward for any further analysis of effects. All aircraft ASW is 
analyzed under ASW TRACKEX (MPA).
    Mine Avoidance--Mine avoidance exercises train ship and submarine 
crews to detect and avoid underwater mines. In the NWTRC, submarine 
crews will use the AN/BQS-15 high frequency active sonar to locate mine 
shapes in a training minefield in the PACNW OPAREA. A small-scale 
underwater minefield will be added in the NWTRC for these exercises. 
Each mine avoidance exercise involves one submarine operating the AN/
BQS-15 sonar for six hours to navigate through

[[Page 33834]]

the training minefield. A total of seven mine avoidance exercises will 
occur in the NWTRC annually.
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[[Page 33835]]



Activities Utilizing Underwater Detonations

    Underwater detonation activities can occur at various depths 
depending on the activity, but may also include activities which may 
have detonations at or just below the surface (such as SINKEX or 
gunnery exercise [GUNEX]). When the weapons hit the target, except for 
live torpedo shots, there is no explosion in the water, and so a 
``hit'' is not modeled (i.e., the energy (either acoustic or pressure) 
from the hit is not expected to reach levels that would result in take 
of marine mammals). When a live weapon misses, it is modeled as 
exploding below the water surface at 1 ft (5-inch naval gunfire, 76mm 
rounds), 2 meters (Maverick, Harpoon, MK-82, MK-83, MK-84), or 50-ft 
(MK-48 torpedo) as shown in Appendix A of the Navy's application (the 
depth is chosen to represent the worst case of the possible scenarios 
as related to potential marine mammal impacts). Exercises may utilize 
either live or inert ordnance of the types listed in Table 3. 
Additionally, successful hit rates are known to the Navy and are 
utilized in the effects modeling. Training events that involve 
explosives and underwater detonations occur throughout the year and are 
described below and summarized in Table 2. Of note, the only Inshore 
Area exercises that use explosives are on EOD ranges described under 
Mine Countermeasures (No more than 4 total detonations of 2.5 lb. 
charges annually).

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Anti-Surface Warfare Training (ASUW)

    Anti-Surface Warfare (ASUW) is the category of activity that 
addresses combat (or interdiction) activities training by air, surface, 
or submarine forces against hostile surface ships and boats. The ASUW 
exercises conducted in NWTRC are described in the sections below. 
Because all of the rounds used in GUNEX in the NWTRC are inert, no take 
of marine mammals is anticipated to

[[Page 33837]]

result from the activity. However, a description is included here for 
comparison and clarity as NMFS has authorized take of marine mammals 
incidental to these activities in the past when explosive rounds were 
used instead of inert rounds.
    Air-to-Surface Bombing Exercise--During an Air-to-Surface Bombing 
Exercise (BOMBEX A-S), fixed-wing aircraft deliver bombs against 
simulated surface maritime targets, typically a smoke float, with the 
goal of destroying or disabling enemy ships or boats. MPA use bombs to 
attack surfaced submarines and surface craft that would not present a 
major threat to the MPA itself. A single MPA approaches the target at a 
low altitude. In most training exercises, the aircrew drops inert 
training ordnance, such as the Bomb Dummy Unit (BDU-45) on a MK-58 
smoke float used as the target. Historically, ordnance has been 
released throughout W-237 (off WA State), just south of W-237, and in 
international waters in accordance with international laws, rules, and 
regulations. Annually, 120 pieces of ordnance, consisting of 10 MK-82 
live bombs and 110 BDU 45 inert bombs, are dropped in the NWTRC. In 
accordance with the regulations for the Olympic Coast National Marine 
Sanctuary (OCNMS) the Navy dos not conduct live bombing in the 
sanctuary. Each BOMBEX A-S can take up to 4 hours to complete.
    Sinking Exercise--A Sinking Exercise (SINKEX) is typically 
conducted by aircraft, surface ships, and submarines in order to take 
advantage of a full size ship target and an opportunity to fire live 
weapons. The target is typically a decommissioned combatant or merchant 
ship that has been made environmentally safe for sinking. In accordance 
with EPA permits, it is towed out to sea (at least 50 nm [92.6 km]) and 
set adrift at the SINKEX location in deep water (at least 1,000 fathoms 
[6,000 feet]) where it will not be a navigation hazard to other 
shipping. The Environmental Protection Agency (EPA) granted the 
Department of the Navy a general permit through the Marine Protection, 
Research, and Sanctuaries Act to transport vessels ``for the purpose of 
sinking such vessels in ocean waters * * *'' (40 CFR Part 229.2). 
Subparagraph (a)(3) of this regulation states ``All such vessel 
sinkings shall be conducted in water at least 1,000 fathoms (6,000 
feet) deep and at least 50 nautical miles from land.''
    Ship, aircraft, and submarine crews typically are scheduled to 
attack the target with coordinated tactics and deliver live ordnance to 
sink the target. Inert ordnance is often used during the first stages 
of the event so that the target may be available for a longer time. The 
duration of a SINKEX is unpredictable because it ends when the target 
sinks, but the goal is to give all forces involved in the exercise an 
opportunity to deliver their live ordnance. Sometimes the target will 
begin to sink immediately after the first weapon impact and sometimes 
only after multiple impacts by a variety of weapons. Typically, the 
exercise lasts 4 to 8 hours, especially if inert ordnance such as 5-
inch gun projectiles or MK-76 dummy bombs are used during the first 
hours. In the worst case of maximum exposure, the following ordnance 
are all expended (in the indicated amounts): MK82 Live Bomb (4); MK83 
Live Bomb (4); MK84 Live Bomb (4); HARM Missile (2); AGM-114 Hellfire 
Missile (1); M-65 Maverick Missile (3); M-84 Harpoon Missile (3); AM ER 
Missile (1); 5 in/62 Shell (500); 76 mm Shell (200); 48 ADCAP Torpedo 
(1). If the hulk is not sunk by weapons, it will be sunk by Explosive 
Ordnance Disposal (EOD) personnel setting off demolition charges 
previously placed on the ship. Since the target may sink at any time 
during the exercise, the actual number of weapons used can vary widely.
    Surface-to-Surface Gunnery Exercise--Surface-to-Surface Gunnery 
Exercises (S-S GUNEX) take place in the open ocean to provide gunnery 
practice for Navy ship crews. Exercises can involve a variety of 
surface targets that are either stationary or maneuverable. Gun systems 
employed against surface targets include the 5<gr-thn-eq>, 76 mm, 57 
mm, .50 caliber and the 7.62 mm. A GUNEX lasts approximately one to two 
hours, depending on target services and weather conditions. All rounds 
fired are inert, containing no explosives.

Mine Warfare Training (MIW)

    Mine Warfare Training includes Mine Countermeasures and Mine 
Avoidance. Mine Avoidance includes use of an active sonar source 
(although in very small amounts) and, therefore, was addressed in the 
appropriate section previously. Because of the location of the EOD 
ranges, the very limited use of explosives (4 individual explosions) 
proposed annually for these Mine Countermeasure exercises, and the 
likely effectiveness of the mitigation (e.g., marine mammal take is 
only expected within 180 m of the impact area, which is well within the 
shutdown zone of 700 yds from the point of impact), take of marine 
mammals is not anticipated to occur in the NWTRC. However, a 
description is included here for comparison as NMFS has authorized take 
of marine mammals incidental to these activities in other areas where 
the amount of activity is significantly greater.
    Mine Countermeasures--Naval EOD personnel require proficiency in 
underwater mine neutralization. Mine neutralization activities consist 
of underwater demolitions designed to train personnel in the 
destruction of mines, unexploded ordnance (UXO), obstacles, or other 
structures in an area to prevent interference with friendly or neutral 
forces and non-combatants. EOD units conduct underwater demolition 
training in Crescent Harbor Underwater EOD Range, Indian Island 
Underwater EOD Range, and Floral Point Underwater EOD Range. A 2.5 lb 
(1.1 kg) charge of C-4 is used, consisting of one surface or one 
subsurface detonation. No more than two detonations will take place 
annually at Crescent Harbor, and no more than one each at Indian Island 
and Floral Point. The total duration of the exercise is four hours for 
an underwater detonation and one hour for a surface detonation. Small 
boats such as the MK-5 Combat Rubber Raiding Craft and MK-7, or 9 
(meters in length, respectively) Rigid Hull Inflatable Boats (RHIB) are 
used to insert personnel for underwater activities and either a 
helicopter (H-60) or RHIB is used for insertion for surface activities.

Vessel Movement

    The operation and movement of vessels that is necessary to conduct 
the training described above is also analyzed here. Training exercises 
involving vessel movements occur intermittently and are variable in 
duration, ranging from a few hours up to 2 weeks. During training, 
speeds vary and depend on the specific type of activity, although 10-14 
knots is considered the typical speed. Approximately 490 training 
activities that involve Navy vessels occur within the Study Area during 
a typical year. Training activities are widely dispersed throughout the 
large OPAREA, which encompasses 122,468 nm\2\ (420,054 km\2\). 
Consequently, the density of Navy ships within the Study Area at any 
given time is low.

Research, Development, Testing, and Evaluation

    RDT&E proposed in this action is limited to Unmanned Aerial Systems 
(UAS) activities, the use of which is not anticipated to result in the 
take of marine mammals because it utilizes small, relatively quiet 
airborne, not undersea, gliders. Undersea RDT&E in the Pacific 
Northwest is conducted at

[[Page 33838]]

the Naval Sea Systems Command (NAVSEA) Keyport range and is analyzed in 
the NAVSEA Naval Undersea Warfare Center (NUWC) Keyport Range Extension 
EIS/OEIS.
    Additional information on the Navy's proposed activities may be 
found in the LOA Application and the Navy's NWTRC DEIS.

Description of Marine Mammals in the Area of the Specified Activities

    The California Current passes through the NWTRC, creating a mixing 
of temperate and tropical waters, thereby making this area one of the 
most productive ocean systems in the world (Department of the Navy 
[DoN], 2002a). Because of this productive environment, there is a rich 
marine mammal fauna, as evidenced in abundance and species diversity 
(Leatherwood et al., 1988; Bonnell and Dailey, 1993). In addition to 
many marine mammal species that live here year-round and use the 
region's coasts and islands for breeding and hauling out, there is a 
community of seasonal residents and migrants. The narrow continental 
shelf along the Pacific coast and the presence of the cold California 
Current sweeping down from Alaska allows cold-water marine mammal 
species to reach nearshore waters as far south as Baja California.
    Thirty-three marine mammal species or populations/stocks have 
confirmed or possible occurrence within the NWTRC, including six 
species of baleen whales (mysticetes), 21 species of toothed whales 
(odontocetes), five species of seals and sea lions (pinnipeds), and the 
sea otter (mustelids). Table 4 summarizes their abundance, Endangered 
Species Act (ESA) status, population trends, and occurrence in the 
area. Most of these species are listed as ``common'' in the table, 
indicating that they occur routinely, either year-round or during 
annual migrations into or through the area. The other species are 
indicated as ``rare'' because of sporadic sightings or as ``very rare'' 
because they have been documented once or twice as appearing outside 
their normal range. All of the species that occur in the NWTRC are 
either cosmopolitan (occur worldwide), or associated with the temperate 
and sub-Arctic oceans (Leatherwood et al., 1988). Seven of the species 
are ESA-listed and considered depleted under the MMPA: Blue whale; fin 
whale; humpback whale; sei whale; sperm whale; southern resident killer 
whale; and Steller sea lion.
    Temperate and warm-water toothed whales often change their 
distribution and abundance as oceanographic conditions vary both 
seasonally (Forney and Barlow, 1998) and inter-annually (Forney, 2000). 
Forney and Barlow (1998) noted significant north/south shifts in 
distribution for Dall's porpoises, common dolphins, and Pacific white-
sided dolphins, and they identified significant inshore/offshore 
differences for northern right whale dolphins and humpback whales. 
Several authors have noted the impact of the El Ni[ntilde]o events of 
1982/1983 and 1997/1998 on marine mammal occurrence patterns and 
population dynamics in the waters off California (Wells et al., 1990; 
Forney and Barlow, 1998; Benson et al., 2002).
    The distribution of some marine mammal species is based on the 
presence of salmon, an important prey source. Seals and sea lions 
congregate near areas where migrating salmon run. For example, in the 
San Juan Islands, harbor seals (Phoca vitulina richardii) congregate 
near a constricted channel where incoming tidal currents funnel 
migrating salmon (Zamon, 2001). In Oregon, harbor seals wait for chum 
salmon runs during the incoming tide near a constriction in Netarts Bay 
(Brown and Mat, 1983). During the summer, southern resident killer 
whales (Orcinus orca) congregate at locations associated with high 
densities of migrating salmon (Heimlich-Boran, 1986; Nichol and 
Shackleton, 1996; Olson, 1998; National Marine Fisheries Service 
[NMFS], 2005i). Their strong preference for Chinook salmon may 
influence the year-round distribution patterns of southern resident 
killer whales in the NWTRC (Ford and Ellis, 2005).
    The Navy has compiled information on the abundance, behavior, 
status and distribution, and vocalizations of marine mammal species in 
the NWTRC waters from the Navy Marine Resource Assessment for NWTRC 
(which was recently updated, during the development of the application 
for this rule, based on peer-reviewed literature and government reports 
such as NMFS' Stock Assessment Reports) and marine mammal experts 
engaged in current research utilizing tagging and tracking. This 
information may be viewed in the Navy's LOA application and/or the 
Navy's DEIS for NWTRC (see Availability), and is incorporated by 
reference herein. Included below, however, are summaries of some 
important biological issues that are needed to further inform the MMPA 
effects analysis. Additional information is available in NMFS Stock 
Assessment Reports, which may be viewed at: http://www.nmfs.noaa.gov/pr/sars/species.htm.
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Species Not Considered Further

    The North Pacific right whale is classified as endangered under the 
ESA. Although there is designated critical habitat for this species in 
the western Gulf of Alaska and an area in the southeastern Bering Sea 
(NMFS, 2006), there is no designated critical habitat for this species 
within the NWTRC. Census data are too limited to suggest a population 
trend for this species. In the western North Pacific, the population 
may number in the low hundreds (Brownell et al., 2001; Clapham et al., 
2004). The eastern population likely now numbers in the tens of 
animals. Right whales were probably never common along the west coast 
of North America (Scarff, 1986; Brownell et al., 2001). Historical 
whaling records provide the most complete information on likely North 
Pacific right whale

[[Page 33840]]

distribution. Presently, sightings are extremely rare, occurring 
primarily in the Okhotsk Sea and the eastern Bering Sea (Brownell et 
al., 2001; Shelden et al., 2005; Shelden and Clapham, 2006; Wade et 
al., 2006). There were no sightings of North Pacific right whales 
during ship surveys conducted off California, Oregon, and Washington 
from 1991 through 2005 (Barlow and Forney, 2007), although recent 
deployment of directional sonobuoys (focused on the gunshot call) in 
the southeastern Bering Sea has resulted in multiple recordings of the 
rarely detected marine mammals (Berchok et al., 2009). The area of 
densest concentration in the Gulf of Alaska is east from 170[deg] W to 
150[deg] W and south to 52[deg] N (Shelden and Clapham, 2006). Based 
upon the extremely low probability of encountering this species 
anywhere in the coastal and offshore waters in the NWTRC, this species 
will not be included in this analysis.

Designated Critical Habitat

Southern Resident Killer Whale

    NMFS designated critical habitat for the southern resident killer 
whale (Orcinus orca) distinct population segment (DPS). Three specific 
areas (which comprise approximately 2,560 square miles (6,630 sq km) of 
marine habitat) are designated:
    (1) The Summer Core Area in Haro Strait and waters around the San 
Juan Islands--Occurrence of Southern Residents in Area 1 coincides with 
concentrations of salmon, and is more consistent and concentrated in 
the summer months of June through August, though they have been sighted 
in Area 1 during every month of the year;
    (2) Puget Sound--southern resident killer whale occurrence in Area 
2 has been correlated with fall salmon runs; and
    (3) The Strait of Juan de Fuca--All pods regularly use the Strait 
of Juan de Fuca for passage from Areas 1 and 2 to outside waters in the 
Pacific Ocean and to access outer coastal water feeding grounds.
    The designated physical and biological features which are essential 
to the conservation of southern resident killer whales and that may 
require special management considerations or protection (Primary 
Constituent Elements/PCEs) are as follows:
    (1) Water quality to support growth and development--Because of 
their long life span, position at the top of the food chain, and their 
blubber stores, southern resident killer whales accumulate high 
concentrations of contaminants;
    (2) Prey species of sufficient quantity, quality and availability 
to support individual growth, reproduction and development, as well as 
overall population growth--Fish are the major dietary component of 
southern resident killer whales in the northeastern Pacific. Salmon 
comprise the southern resident killer whales' preferred prey, and are 
likely consumed in large amounts; and
    (3) Passage conditions to allow for migration, resting, and 
foraging--In order to move between important habitat areas, find prey, 
and fulfill other life history requirements, southern resident killer 
whales require open waterways that are free from obstruction.
    As noted previously, the Navy's proposed action does not include 
the use of MFAS/HFAS in southern resident killer whale critical 
habitat, and explosive use is limited to four detonations of 2.5-lb 
charges annually in EOD exercises.

Steller Sea Lion

    In California and Oregon, major Steller sea lion rookeries and 
associated air and aquatic zones are designated as critical habitat. 
Critical habitat includes an air zone extending 3,000 ft above rookery 
areas historically occupied by sea lions and an aquatic zone extending 
3,000 seaward. Three rookeries located along the southern Oregon Coast 
have been designated as critical habitat sites in the NWTRC. These 
include: Orford Reef (Long Brown Rock); Oxrord Reef (Seal Rock); Rogue 
Reef (Pyramid Rock). The PCEs for Steller sea lions are: Nearshore 
waters around rookeries and haulouts and prey resources and foraging 
habitats.

Gray Whale Migration

    The gray whale makes a well-defined seasonal north-south migration. 
Most of the population summers in the shallow waters of the northern 
Bering Sea, the Chukchi Sea, and the western Beaufort Sea (Rice and 
Wolman, 1971), whereas some individuals also summer along the Pacific 
coast from Vancouver Island to central California (Rice and Wolman, 
1971; Darling 1984; Nerini, 1984). In October and November, the whales 
begin to migrate southeast through Unimak Pass and follow the shoreline 
south to breeding grounds on the west coast of Baja California and the 
southeastern Gulf of California (Braham, 1984; Rugh, 1984). The average 
gray whale migrates 7,500-10,000 km at a rate of 147 km/d (Rugh et al., 
2001; Jones and Swartz, 2002). Although some calves are born along the 
coast of California, most are born in the shallow, protected waters on 
the Pacific coast of Baja California from Morro de Santo Domingo 
(28[deg] N) south to Isla Creciente (24[deg] N) (Urban et al., 2003). 
The main calving sites are Laguna Guerrero Negro, Laguna Ojo de Liebre, 
Laguna San Ignacio, and Estero Soledad (Rice et al., 1981).
    Gray whales occur in the Pacific Northwest OPAREA and Puget Sound 
throughout the year. In addition, larger numbers of migratory animals 
transit along the coast of Washington, Oregon, and California during 
migrations between breeding and feeding grounds. Peak sightings in the 
NWTRC during the southbound migration occur in January (Rugh et al., 
2001). There are two phases of the northbound migration, including an 
early phase from mid-February through April and a later phase, which 
consists of mostly cows and calves, from late April through May 
(Herzing and Mate, 1984).

Marine Mammal Hearing and Vocalizations

    Cetaceans have an auditory anatomy that follows the basic mammalian 
pattern, with some changes to adapt to the demands of hearing in the 
sea. The typical mammalian ear is divided into an outer ear, middle 
ear, and inner ear. The outer ear is separated from the inner ear by a 
tympanic membrane, or eardrum. In terrestrial mammals, the outer ear, 
eardrum, and middle ear transmit airborne sound to the inner ear, where 
the sound waves are propagated through the cochlear fluid. Since the 
impedance of water is close to that of the tissues of a cetacean, the 
outer ear is not required to transduce sound energy as it does when 
sound waves travel from air to fluid (inner ear). Sound waves traveling 
through the inner ear cause the basilar membrane to vibrate. 
Specialized cells, called hair cells, respond to the vibration and 
produce nerve pulses that are transmitted to the central nervous 
system. Acoustic energy causes the basilar membrane in the cochlea to 
vibrate. Sensory cells at different positions along the basilar 
membrane are excited by different frequencies of sound (Pickles, 1998). 
Baleen whales have inner ears that appear to be specialized for low-
frequency hearing. Conversely, dolphins and porpoises have ears that 
are specialized to hear high frequencies.
    Marine mammal vocalizations often extend both above and below the 
range of human hearing; vocalizations with frequencies lower than 18 
Hertz (Hz) are labeled as infrasonic and those higher than 20 kHz as 
ultrasonic (National Research Council [NRC], 2003; Figure 4-1). 
Measured data on the hearing

[[Page 33841]]

abilities of cetaceans are sparse, particularly for the larger 
cetaceans such as the baleen whales. The auditory thresholds of some of 
the smaller odontocetes have been determined in captivity. It is 
generally believed that cetaceans should at least be sensitive to the 
frequencies of their own vocalizations. Comparisons of the anatomy of 
cetacean inner ears and models of the structural properties and the 
response to vibrations of the ear's components in different species 
provide an indication of likely sensitivity to various sound 
frequencies. The ears of small toothed whales are optimized for 
receiving high-frequency sound, while baleen whale inner ears are best 
in low to infrasonic frequencies (Ketten, 1992; 1997; 1998).
    Baleen whale vocalizations are composed primarily of frequencies 
below 1 kHz, and some contain fundamental frequencies as low as 16 Hz 
(Watkins et al., 1987; Richardson et al., 1995; Rivers, 1997; Moore et 
al., 1998; Stafford et al., 1999; Wartzok and Ketten, 1999) but can be 
as high as 24 kHz (humpback whale; Au et al., 2006). Clark and Ellison 
(2004) suggested that baleen whales use low frequency sounds not only 
for long-range communication, but also as a simple form of echo 
ranging, using echoes to navigate and orient relative to physical 
features of the ocean. Information on auditory function in mysticetes 
is extremely lacking. Sensitivity to low-frequency sound by baleen 
whales has been inferred from observed vocalization frequencies, 
observed reactions to playback of sounds, and anatomical analyses of 
the auditory system. Although there is apparently much variation, the 
source levels of most baleen whale vocalizations lie in the range of 
150-190 dB re 1 [mu]Pa at 1 m. Low-frequency vocalizations made by 
baleen whales and their corresponding auditory anatomy suggest that 
they have good low-frequency hearing (Ketten, 2000), although specific 
data on sensitivity, frequency or intensity discrimination, or 
localization abilities are lacking. Marine mammals, like all mammals, 
have typical U-shaped audiograms that begin with relatively low 
sensitivity (high threshold) at some specified low frequency with 
increased sensitivity (low threshold) to a species specific optimum 
followed by a generally steep rise at higher frequencies (high 
threshold) (Fay, 1988).
    The toothed whales produce a wide variety of sounds, which include 
species-specific broadband ``clicks'' with peak energy between 10 and 
200 kHz, individually variable ``burst pulse'' click trains, and 
constant frequency or frequency-modulated (FM) whistles ranging from 4 
to 16 kHz (Wartzok and Ketten, 1999). The general consensus is that the 
tonal vocalizations (whistles) produced by toothed whales play an 
important role in maintaining contact between dispersed individuals, 
while broadband clicks are used during echolocation (Wartzok and 
Ketten, 1999). Burst pulses have also been strongly implicated in 
communication, with some scientists suggesting that they play an 
important role in agonistic encounters (McCowan and Reiss, 1995), while 
others have proposed that they represent ``emotive'' signals in a 
broader sense, possibly representing graded communication signals 
(Herzing, 1996). Sperm whales, however, are known to produce only 
clicks, which are used for both communication and echolocation 
(Whitehead, 2003). Most of the energy of toothed whales social 
vocalizations is concentrated near 10 kHz, with source levels for 
whistles as high as 100-180 dB re 1 [mu]Pa at 1 m (Richardson et al., 
1995). No odontocete has been shown audiometrically to have acute 
hearing (<80 dB re 1 [mu]Pa) below 500 Hz (DoN, 2001). Sperm whales 
produce clicks, which may be used to echolocate (Mullins et al., 1988), 
with a frequency range from less than 100 Hz to 30 kHz and source 
levels up to 230 dB re 1 [mu]Pa 1 m or greater (Mohl et al., 2000).
    Table 5 includes a summary of the vocalizations of the species 
found in the NWTRC. The ``Brief Background on Sound'' section contained 
a description of the functional hearing groups designated by Southall 
et al., (2007), which includes the functional hearing range of various 
marine mammal groups (i.e., what frequencies that can actually hear).

Marine Mammal Density Estimates

    Understanding the distribution and abundance of a particular marine 
mammal species or stock is necessary to analyze the potential impacts 
of an action on that species or stock. Further, in order to assess 
quantitatively the likely acoustic impacts of a potential action on 
individuals and to estimate take it is necessary to know the density of 
the animals in the affected area. Density estimates for cetaceans were 
obtained from the Marine Mammal and Sea Turtle Density Estimates for 
the Pacific Northwest Study Area (DoN, 2007a). The abundance of most 
cetaceans was derived from shipboard surveys conducted by the Southwest 
Fisheries Science Center in 1991, 1993, 1996, 2001, and 2005 (Barlow, 
1995; Barlow, 2003; Barlow and Forney, 2007). These estimates are used 
to develop NMFS Stock Assessment Reports (Carretta et al., 2007); 
interpret the impacts of human-caused mortality associated with fishery 
bycatch, ship strikes, and other sources; and evaluate the ecological 
role of cetaceans in the eastern North Pacific. In the density study, 
predictive species-habitat models were built for species with 
sufficient numbers of sightings to estimate densities for the NWTRC 
(described in detail Appendix B of the Navy's application). For species 
with insufficient numbers of sightings, density estimates were obtained 
from Barlow and Forney (2007).
    There are limited depth distribution data for most marine mammals. 
This is especially true for cetaceans, as they must be tagged at-sea 
and by using a tag that either must be implanted in the skin/blubber in 
some manner or adhere to the skin. There is slightly more data for some 
pinnipeds, as they can be tagged while on shore during breeding or 
molting seasons and the tags can be glued to the pelage rather than 
implanted. There are a few different methodologies/techniques that can 
be used to determine depth distribution percentages, but by far the 
most widely used technique currently is the time-depth recorder. These 
instruments are attached to the animal for a fairly short period of 
time (several hours to a few days) via a suction cup or glue, and then 
retrieved immediately after detachment or when the animal returns to 
the beach. Depth information can also be collected via satellite tags, 
sonic tags, digital tags, and, for sperm whales, via acoustic tracking 
of sounds produced by the animal itself.
    There are somewhat suitable depth distribution data for a few 
marine mammal species. Sample sizes are usually extremely small, nearly 
always fewer than 10 animals total and often only one or two animals. 
Depth distribution information often must be interpreted from other 
dive and/or preferred prey characteristics. Depth distributions for 
species for which no data are available are extrapolated from similar 
species.
    Density is nearly always reported for an area, e.g., animals/
km<SUP>2</SUP>. Analyses of survey results using Distance Sampling 
techniques include correction factors for animals at the surface but 
not seen as well as animals below the surface and not seen. Therefore, 
although the area (e.g., km<SUP>2</SUP>) appears to represent only the 
surface of the water (two-dimensional), density actually implicitly 
includes animals anywhere within the water column under that surface 
area. Density assumes that animals are uniformly distributed within the 
prescribed area,

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even though this is likely rarely true. Marine mammals are usually 
clumped in areas of greater importance (and often in groups), for 
example, areas of high productivity, lower predation, safe calving, 
etc. Density can occasionally be calculated for smaller areas that are 
used regularly by marine mammals, but more often than not there are 
insufficient data to calculate density for small areas. Therefore, 
assuming an even distribution within the prescribed area remains the 
norm.
    Assuming that marine mammals are distributed evenly within the 
water column is not accurate. The ever-expanding database of marine 
mammal behavioral and physiological parameters obtained through tagging 
and other technologies has demonstrated that marine mammals use the 
water column in various ways, with some species capable of regular deep 
dives (<800 m) and others regularly diving to <200 m, regardless of the 
bottom depth. Assuming that all species are evenly distributed from 
surface to bottom is almost never appropriate and can present a 
distorted view of marine mammal distribution in any region.
    By combining marine mammal density with depth distribution 
information, a more accurate three-dimensional density estimate is 
possible. These 3-D estimates allow more accurate modeling of potential 
marine mammal exposures from specific noise sources. Density estimates 
are included in Table 4.
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Brief Background on Sound

    An understanding of the basic properties of underwater sound is 
necessary to comprehend many of the concepts and analyses presented in 
this document. A summary is included below.
    Sound is a wave of pressure variations propagating through a medium 
(for the MFAS/HFAS considered in this proposed rule, the medium is 
marine water). Pressure variations are created by compressing and 
relaxing the medium. Sound measurements can be expressed in two forms: 
Intensity and pressure. Acoustic intensity is the average rate of 
energy transmitted through a unit area in a specified direction and is 
expressed in watts per square meter (W/m<SUP>2</SUP>). Acoustic 
intensity is rarely measured directly, it is derived from ratios of 
pressures; the standard reference pressure for underwater sound is 1 
microPascal ([mu]Pa); for airborne sound, the standard reference 
pressure is 20 [mu]Pa (Richardson et al., 1995).
    Acousticians have adopted a logarithmic scale for sound 
intensities, which is denoted in decibels (dB). Decibel measurements 
represent the ratio between a measured pressure value and a reference 
pressure value (in this case 1 [mu]Pa or, for airborne sound, 20 
[mu]Pa). The logarithmic nature of the scale means that each 10 dB 
increase is a ten-fold increase in power (e.g., 20 dB is a 100-fold 
increase, 30 dB is a 1,000-fold increase). Humans perceive a 10-dB 
increase in noise as a doubling of loudness, or a 10 dB decrease in 
noise as a halving of loudness. The term ``sound pressure level'' 
implies a decibel measure and a reference pressure that is used as the 
denominator of the ratio. Throughout this document, NMFS uses 1 
microPascal (denoted re: [mu]Pa) as a standard reference pressure 
unless noted otherwise.
    It is important to note that decibels underwater and decibels in 
air are not the same and cannot be directly compared. To estimate a 
comparison between sound in air and underwater, because of the 
different densities of air and water and the different decibel 
standards (i.e., reference pressures) in water and air, a sound with 
the same intensity (i.e., power) in air and in water would be 
approximately 63 dB quieter in air. Thus a sound that is 160 dB loud 
underwater would have the same approximate effective intensity as a 
sound that is 97 dB loud in air.
    Sound frequency is measured in cycles per second, or Hertz 
(abbreviated Hz), and is analogous to musical pitch; high-pitched 
sounds contain high frequencies and low-pitched sounds contain low 
frequencies. Natural sounds in the ocean span a huge range of 
frequencies: From earthquake noise at 5 Hz to harbor porpoise clicks at 
150,000 Hz (150 kHz). These sounds are so low or so high in pitch that 
humans cannot even hear them; acousticians call these infrasonic 
(typically below 20 Hz) and ultrasonic (typically above 20,000 Hz) 
sounds, respectively. A single sound may be made up of many different 
frequencies together. Sounds made up of only a small range of 
frequencies are called ``narrowband'', and sounds with a broad range of 
frequencies are called ``broadband''; explosives are an example of a 
broadband sound source and active tactical sonars are an example of a 
narrowband sound source.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms derived using auditory evoked 
potential (AEP) techniques, anatomical modeling, and other data, 
Southall et al., (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. Further, the frequency range in which 
each group's hearing is estimated as being most sensitive is 
represented in the flat part of the M-weighting functions developed for 
each group. The functional groups and the associated frequencies are 
indicated below (though, again, animals are less sensitive to sounds at 
the outer edge of their functional range and most sensitive to sounds 
of frequencies within a smaller range somewhere in the middle of their 
functional hearing range):
    <bullet> Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz;
    <bullet> 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;
    <bullet> 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;
    <bullet> Pinnipeds in Water: Functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    Because ears adapted to function underwater are physiologically 
different from human ears, comparisons using decibel measurements in 
air would still not be adequate to describe the effects of a sound on a 
whale. When sound travels away from its source, its loudness decreases 
as the distance traveled (propagates) by the sound increases. Thus, the 
loudness of a sound at its source is higher than the loudness of that 
same sound a kilometer distant. Acousticians often refer to the 
loudness of a sound at its source (typically measured one meter from 
the source) as the source level and the loudness of sound elsewhere as 
the received level. For example, a humpback whale three kilometers from 
an airgun that has a source level of 230 dB may only be exposed to 
sound that is 160 dB loud, depending on how the sound propagates (in 
this example, it is spherical spreading). As a result, it is important 
not to confuse source levels and received levels when discussing the 
loudness of sound in the ocean or its impacts on the marine 
environment.
    As sound travels from a source, its propagation in water is 
influenced by various physical characteristics, including water 
temperature, depth, salinity, and surface and bottom properties that 
cause refraction, reflection, absorption, and scattering of sound 
waves. Oceans are not homogeneous and the contribution of each of these 
individual factors is extremely complex and interrelated. The physical 
characteristics that determine the sound's speed through the water will 
change with depth, season, geographic location, and with time of day 
(as a result, in actual MFAS/HFAS operations, crews will measure 
oceanic conditions, such as sea water temperature and depth, to 
calibrate models that determine the path the sonar signal will take as 
it travels through the ocean and how strong the sound signal will be at 
a given range along a particular transmission path). As sound travels 
through the ocean, the intensity associated with the wavefront 
diminishes, or attenuates. This decrease in intensity is referred to as 
propagation loss, also commonly called transmission loss.

Metrics Used in This Document

    This section includes a brief explanation of the two sound 
measurements (sound pressure level (SPL) and sound exposure level 
(SEL)) frequently used in the discussions of acoustic effects in this 
document.

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SPL

    Sound pressure is the sound force per unit area, and is usually 
measured in micropascals ([mu]Pa), 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 [mu]Pa, and the units for SPLs are dB re: 1 
[mu]Pa.

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

    SPL is an instantaneous measurement and can be expressed as the 
peak, the peak-peak, or the root mean square (rms). Root mean square, 
which is the square root of the arithmetic average of the squared 
instantaneous pressure values, is typically used in discussions of the 
effects of sounds on vertebrates and all references to SPL in this 
document refer to the root mean square. SPL does not take the duration 
of a sound into account. SPL is the applicable metric used in the risk 
continuum, which is used to estimate behavioral harassment takes (see 
Level B Harassment Risk Function (Behavioral Harassment) Section).

SEL

    SEL is an energy metric that integrates the squared instantaneous 
sound pressure over a stated time interval. The units for SEL are dB 
re: 1 [mu]Pa<SUP>2</SUP>-s.

SEL = SPL + 10log (duration in seconds)

    As applied to MFAS/HFAS, the SEL includes both the SPL of a sonar 
ping and the total duration. Longer duration pings and/or pings with 
higher SPLs will have a higher SEL. If an animal is exposed to multiple 
pings, the SEL in each individual ping is summed to calculate the total 
SEL. The total SEL depends on the SPL, duration, and number of pings 
received. The thresholds that NMFS uses to indicate at what received 
level the onset of temporary threshold shift (TTS) and permanent 
threshold shift (PTS) in hearing are likely to occur are expressed in 
SEL.

Potential Effects of Specified Activities on Marine Mammals

    The Navy has requested authorization for the take of marine mammals 
that may occur incidental to training activities in the NWTRC utilizing 
MFAS/HFAS or underwater detonations. In addition to MFAS/HFAS and 
underwater detonations, the Navy has analyzed other potential impacts 
to marine mammals from training activities in the NWTRC DEIS, including 
ship strike, aerial overflights, ship noise and movement, and others, 
and, in consultation with NMFS as a cooperating agency for the NWTRC 
DEIS, has determined that take of marine mammals incidental to these 
non-acoustic components of the NWTRC is unlikely and, therefore, has 
not requested authorization for take of marine mammals that might occur 
incidental to these non-acoustic components. In this document, NMFS 
analyzes the potential effects on marine mammals from exposure to MFAS/
HFAS and underwater detonations, but also includes some additional 
analysis of the potential impacts from vessel operation in the NWTRC.
    For the purpose of MMPA authorizations, NMFS' effects assessments 
serve four primary purposes: (1) To help identify the permissible 
methods of taking, meaning: the nature of the take (e.g., resulting 
from anthropogenic noise vs. from ship strike, etc.); the regulatory 
level of take (i.e., mortality vs. Level A or Level B harassment), and; 
the amount of take; (2) to inform the prescription of means of 
affecting the least practicable adverse impact on such species or stock 
and its habitat (i.e., mitigation); (3) to support the determination of 
whether the specified activity will have a negligible impact on the 
affected species or stocks of marine mammals (based on the likelihood 
that the activity will adversely affect the species or stock through 
effects on annual rates of recruitment or survival); and (4) 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 NWTRC).
    More specifically, for activities involving sonar or underwater 
detonations, NMFS' analysis will identify the probability of lethal 
responses, physical trauma, sensory impairment (permanent and temporary 
threshold shifts and acoustic masking), physiological responses 
(particular stress responses), behavioral disturbance (that rises to 
the level of harassment), and social responses that would be classified 
as behavioral harassment or injury and/or would be likely to adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival. In this section, we will focus qualitatively 
on the different ways that MFAS/HFAS and underwater explosive 
detonations may affect marine mammals (some of which NMFS would not 
classify as harassment). Then, in the Estimated Take of Marine Mammals 
Section, NMFS will relate the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives to the MMPA 
regulatory definitions of Level A and Level B Harassment and attempt to 
quantify those effects.

Exposure to MFAS/HFAS

    In the subsections below, the following types of impacts are 
discussed in more detail: Direct physiological impacts, stress 
responses, acoustic masking and impaired communication, behavioral 
disturbance, and strandings. An additional useful graphic tool for 
better understanding the layered nature of potential marine mammal 
responses to anthropogenic sound is presented in NMFS' January 14, 2009 
Programmatic biological opinion on the U.S. Navy's proposal to conduct 
training exercises in the Southern California Range Complex from 
January 2009 to January 2014 (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). This document presents a 
conceptual model of the potential responses of endangered and 
threatened species upon being exposed to MFAS/HFAS and the pathways by 
which those responses might affect the fitness of individual animals 
that have been exposed, and the resulting impact on the individual 
animal's ability to reproduce or survive. Literature supporting the 
framework, with examples drawn from many taxa (both aquatic and 
terrestrial) was included in the ``Application of this Approach'' and 
``Response Analyses'' sections of that document.

Direct Physiological Effects

    Based on the literature, there are two basic ways that MFAS/HFAS 
might directly result in physical trauma or damage: Noise-induced loss 
of hearing sensitivity (more commonly-called ``threshold shift'') and 
acoustically mediated bubble growth. Separately, an animal's behavioral 
reaction to an acoustic exposure might lead to physiological effects 
that might ultimately lead to injury or death, which is discussed later 
in the Stranding section.

Threshold Shift (Noise-Induced Loss of Hearing)

    When animals exhibit reduced hearing sensitivity (i.e., sounds must 
be louder for an animal to recognize them) following exposure to a 
sufficiently intense sound, it is referred to as a noise-induced 
threshold shift (TS). An animal can experience temporary threshold 
shift (TTS) or permanent threshold shift (PTS). TTS can last from 
minutes or hours to days (i.e., there is

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recovery), occurs in specific frequency ranges (i.e., an animal might 
only have a temporary loss of hearing sensitivity between the 
frequencies of 1 and 10 kHz), and can be of varying amounts (for 
example, an animal's hearing sensitivity might be reduced by only 6 dB 
or reduced by 30 dB). PTS is permanent (i.e., there is no recovery), 
but also occurs in a specific frequency range and amount as mentioned 
above for TTS.
    The following physiological mechanisms are thought to play a role 
in inducing auditory TSs: Effects to sensory hair cells in the inner 
ear that reduce their sensitivity, modification of the chemical 
environment within the sensory cells, residual muscular activity in the 
middle ear, displacement of certain inner ear membranes, increased 
blood flow, and post-stimulatory reduction in both efferent and sensory 
neural output (Southall et al., 2007). The amplitude, duration, 
frequency, temporal pattern, and energy distribution of sound exposure 
all affect the amount of associated TS and the frequency range in which 
it occurs. As amplitude and duration of sound exposure increase, so, 
generally, does the amount of TS, along with the recovery time. Human 
non-impulsive noise exposure guidelines are based on exposures of equal 
energy (the same SEL) producing equal amounts of hearing impairment 
regardless of how the sound energy is distributed in time (NIOSH, 
1998). Until recently, previous marine mammal TTS studies have also 
generally supported this equal energy relationship (Southall et al., 
2007). Three newer studies, two by Mooney et al., (2009a, 2009b) on a 
single bottlenose dolphin either exposed to playbacks of Navy MFAS or 
octave-band noise (4-8 kHz) and one by Kastak et al., (2007) on a 
single California sea lion exposed to airborne octave-band noise 
(centered at 2.5 kHz), concluded that for all noise exposure situations 
the equal energy relationship may not be the best indicator to predict 
TTS levels. All three of these studies highlight the inherent 
complexity of TTS in marine mammals, as well the importance of 
considering exposure duration when assessing impacts. With exposures of 
equal energy, quieter, longer duration exposures were found to induce 
greater levels of TTS than those of exposures that were louder and of 
shorter duration (more similar to MFAS). For intermittent sounds, less 
TS will occur than from a continuous exposure with the same energy 
(some recovery will occur between intermittent exposures) (Kryter et 
al., 1966; Ward, 1997). For example, one short but loud (higher SPL) 
sound exposure may induce the same impairment as one longer but softer 
sound, which in turn may cause more impairment than a series of several 
intermittent softer sounds with the same total energy (Ward, 1997). 
Additionally, though TTS is temporary, very prolonged exposure to sound 
strong enough to elicit TTS, or shorter-term exposure to sound levels 
well above the TTS threshold, can cause PTS, at least in terrestrial 
mammals (Kryter, 1985) (although in the case of MFAS/HFAS, animals are 
not expected to be exposed to levels high enough or durations long 
enough to result in PTS).
    PTS is considered auditory injury (Southall et al., 2007). 
Irreparable damage to the inner or outer cochlear hair cells may cause 
PTS, however, other mechanisms are also involved, such as exceeding the 
elastic limits of certain tissues and membranes in the middle and inner 
ears and resultant changes in the chemical composition of the inner ear 
fluids (Southall et al., 2007).
    Although the published body of scientific literature contains 
numerous theoretical studies and discussion papers on hearing 
impairments that can occur with exposure to a loud sound, only a few 
studies provide empirical information on the levels at which noise-
induced loss in hearing sensitivity occurs in nonhuman animals. For 
cetaceans, published data on the onset of TTS are limited to the 
captive bottlenose dolphin and beluga (Finneran et al., 2000, 2002b, 
2005a; Schlundt et al., 2000; Nachtigall et al., 2003, 2004). For 
pinnipeds in water, data are limited to Kastak et al.'s measurement of 
TTS in one harbor seal, one elephant seal, and one California sea lion.
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that takes place 
during a time when the animal is traveling through the open ocean, 
where ambient noise is lower and there are not as many competing sounds 
present. Alternatively, a larger amount and longer duration of TTS 
sustained during time when communication is critical for successful 
mother/calf interactions could have more serious impacts if it were in 
the same frequency band as the necessary vocalizations and of a 
severity that it impeded communication. Also, depending on the degree 
and frequency range, the effects of PTS on an animal could range in 
severity, although it is considered generally more serious because it 
is a permanent condition. Of note, reduced hearing sensitivity as a 
simple function of development and aging has been observed in marine 
mammals, as well as humans and other taxa (Southall et al., 2007), so 
we can infer that strategies exist for coping with this condition to 
some degree, though likely not without cost. There is no empirical 
evidence that exposure to MFAS/HFAS can cause PTS in any marine 
mammals; instead the probability of PTS has been inferred from studies 
of TTS (see Richardson et al., 1995).

Acoustically Mediated Bubble Growth

    One theoretical cause of injury to marine mammals is rectified 
diffusion (Crum and Mao, 1996), the process of increasing the size of a 
bubble by exposing it to a sound field. This process could be 
facilitated if the environment in which the ensonified bubbles exist is 
supersaturated with gas. Repetitive diving by marine mammals can cause 
the blood and some tissues to accumulate gas to a greater degree than 
is supported by the surrounding environmental pressure (Ridgway and 
Howard, 1979). The deeper and longer dives of some marine mammals (for 
example, beaked whales) are theoretically predicted to induce greater 
supersaturation (Houser et al., 2001b). If rectified diffusion were 
possible in marine mammals exposed to high-level sound, conditions of 
tissue supersaturation could theoretically speed the rate and increase 
the size of bubble growth. Subsequent effects due to tissue trauma and 
emboli would presumably mirror those observed in humans suffering from 
decompression sickness.
    It is unlikely that the short duration of MFAS pings would be long 
enough to drive bubble growth to any substantial size, if such a 
phenomenon occurs. However, an alternative but related hypothesis has 
also been suggested: Stable bubbles could be destabilized by high-level 
sound exposures such that bubble growth then occurs through static 
diffusion of gas out of the tissues. In such a scenario the marine 
mammal would need to be in a gas-supersaturated state for a long

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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 MFAS/
HFAS exposures. Further investigation is needed to further assess the 
potential validity of these hypotheses. More information regarding 
hypotheses that attempt to explain how behavioral responses to MFAS/
HFAS can lead to strandings is included in the Behaviorally Mediated 
Bubble Growth Section, after the summary of strandings.

Acoustic Masking

    Marine mammals use acoustic signals for a variety of purposes, 
which differ among species, but include communication between 
individuals, navigation, foraging, reproduction, and learning about 
their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or 
auditory interference, generally occurs when sounds in the environment 
are louder than and of a similar frequency to, auditory signals an 
animal is trying to receive. Masking is a phenomenon that affects 
animals that are trying to receive acoustic information about their 
environment, including sounds from other members of their species, 
predators, prey, and sounds that allow them to orient in their 
environment. Masking these acoustic signals can disturb the behavior of 
individual animals, groups of animals, or entire populations.
    The extent of the masking interference depends on the spectral, 
temporal, and spatial relationships between the signals an animal is 
trying to receive and the masking noise, in addition to other factors. 
In humans, significant masking of tonal signals occurs as a result of 
exposure to noise in a narrow band of similar frequencies. As the sound 
level increases, though, the detection of frequencies above those of 
the masking stimulus decreases also. This principle is expected to 
apply to marine mammals as well because of common biomechanical 
cochlear properties across taxa.
    Richardson et al., (1995b) argued that the maximum radius of 
influence of an industrial noise (including broadband low frequency 
sound transmission) on a marine mammal is the distance from the source 
to the point at which the noise can barely be heard. This range is 
determined by either the hearing sensitivity of the animal or the 
background noise level present. Industrial masking is most likely to 
affect some species' ability to detect communication calls and natural 
sounds (i.e., surf noise, prey noise, etc.; Richardson et al., 1995).
    The echolocation calls of toothed whales are subject to masking by 
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). A 
recent study by Nachtigall and Supin (2008) showed that false killer 
whales adjust their hearing to compensate for ambient sounds and the 
intensity of returning echolocation signals.
    As mentioned previously, the functional hearing ranges of 
odontocetes, pinnipeds underwater, and mysticetes all encompass the 
frequencies of the MFAS/HFAS sources used in the Navy's MFAS/HFAS 
training exercises (although some mysticete's best hearing capacities 
are likely at frequencies somewhat lower than MFAS). Additionally, in 
almost all species, vocal repertoires span across the frequencies of 
these MFAS/HFAS sources used by the Navy. The closer the 
characteristics of the masking signal to the signal of interest, the 
more likely masking is to occur. For hull-mounted MFAS/HFAS--which 
accounts for the largest part of the takes of marine mammals (because 
of the source strength and number of hours it's conducted), the pulse 
length and duty cycle of the MFAS/HFAS signal (~1 second pulse twice a 
minute) makes it less likely that masking will occur as a result.

Impaired Communication

    In addition to making it more difficult for animals to perceive 
acoustic cues in their environment, anthropogenic sound presents 
separate challenges for animals that are vocalizing. When they 
vocalize, animals are aware of environmental conditions that affect the 
``active space'' of their vocalizations, which is the maximum area 
within which their vocalizations can be detected before it drops to the 
level of ambient noise (Brenowitz, 2004; Brumm et al., 2004; Lohr et 
al., 2003). Animals are also aware of environmental conditions that 
affect whether listeners can discriminate and recognize their 
vocalizations from other sounds, which is more important than simply 
detecting that a vocalization is occurring (Brenowitz, 1982; Brumm et 
al., 2004; Dooling, 2004, Marten and Marler, 1977; Patricelli et al., 
2006). Most animals that vocalize have evolved with an ability to make 
adjustments to their vocalizations to increase the signal-to-noise 
ratio, active space, and recognizability/distinguishability of their 
vocalizations in the face of temporary changes in background noise 
(Brumm et al., 2004; Patricelli et al., 2006). Vocalizing animals can 
make one or more of the following adjustments to their vocalizations: 
Adjust the frequency structure; adjust the amplitude; adjust temporal 
structure; or adjust temporal delivery (see Biological Opinion).
    Many animals will combine several of these strategies to compensate 
for high levels of background noise.

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Anthropogenic sounds that reduce the signal-to-noise ratio of animal 
vocalizations, increase the masked auditory thresholds of animals 
listening for such vocalizations, or reduce the active space of an 
animal's vocalizations, impair communication between animals. Most 
animals that vocalize have evolved strategies to compensate for the 
effects of short-term or temporary increases in background or ambient 
noise on their songs or calls. Although the fitness consequences of 
these vocal adjustments remain unknown, like most other trade-offs 
animals must make, some of these strategies probably come at a cost 
(Patricelli et al., 2006). For example, vocalizing more loudly in noisy 
environments may have energetic costs that decrease the net benefits of 
vocal adjustment and alter a bird's energy budget (Brumm, 2004; Wood 
and Yezerinac, 2006). Shifting songs and calls to higher frequencies 
may also impose energetic costs (Lambrechts, 1996).

Stress Responses

    Classic stress responses begin when an animal's central nervous 
system perceives a potential threat to its homeostasis. That perception 
triggers stress responses regardless of whether a stimulus actually 
threatens the animal; the mere perception of a threat is sufficient to 
trigger a stress response (Moberg, 2000; Sapolsky et al., 2005; Seyle, 
1950). Once an animal's central nervous system perceives a threat, it 
mounts a biological response or defense that consists of a combination 
of the four general biological defense responses: Behavioral responses, 
autonomic nervous system responses, neuroendocrine responses, or immune 
response.
    In the case of many stressors, an animal's first and most 
economical (in terms of biotic costs) response is behavioral avoidance 
of the potential stressor or avoidance of continued exposure to a 
stressor. An animal's second line of defense to stressors involves the 
sympathetic part of the autonomic nervous system and the classical 
``fight or flight'' response which includes the cardiovascular system, 
the gastrointestinal system, the exocrine glands, and the adrenal 
medulla to produce changes in heart rate, blood pressure, and 
gastrointestinal activity that humans commonly associate with 
``stress.'' These responses have a relatively short duration and may or 
may not have significant long-term 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-pituitary-adrenal 
system (also known as the HPA axis in mammals or the hypothalamus-
pituitary-interrenal axis in fish and some reptiles). Unlike stress 
responses associated with the autonomic nervous system, virtually all 
neuro-endocrine functions that are affected by stress--including immune 
competence, reproduction, metabolism, and behavior--are regulated by 
pituitary hormones. Stress-induced changes in the secretion of 
pituitary hormones have been implicated in failed reproduction (Moberg, 
1987; Rivier, 1995) and altered metabolism (Elasser et al., 2000), 
reduced immune competence (Blecha, 2000) and behavioral disturbance. 
Increases in the circulation of glucocorticosteroids (cortisol, 
corticosterone, and aldosterone in marine mammals; see Romano et al., 
2004) have been equated with stress for many years.
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and distress is the biotic cost 
of the response. During a stress response, an animal uses glycogen 
stores that can be quickly replenished once the stress is alleviated. 
In such circumstances, the cost of the stress response would not pose a 
risk to the animal's welfare. However, when an animal does not have 
sufficient energy reserves to satisfy the energetic costs of a stress 
response, energy resources must be diverted from other biotic 
functions, which impairs those functions that experience the diversion. 
For example, when mounting a stress response diverts energy away from 
growth in young animals, those animals may experience stunted growth. 
When mounting a stress response diverts energy from a fetus, an 
animal's reproductive success and its fitness will suffer. In these 
cases, the animals will have entered a pre-pathological or pathological 
state which is called ``distress'' (sensu Seyle, 1950) or ``allostatic 
loading'' (sensu McEwen and Wingfield, 2003). This pathological state 
will last until the animal replenishes its biotic reserves sufficient 
to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses have also been documented 
fairly well through controlled experiment; because this physiology 
exists in every vertebrate that has been studied, it is not surprising 
that stress responses and their costs have been documented in both 
laboratory and free-living animals (for examples see, Holberton et al., 
1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; 
Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 
2000). Although no information has been collected on the physiological 
responses of marine mammals to exposure to anthropogenic sounds, 
studies of other marine animals and terrestrial animals would lead us 
to expect some marine mammals to experience physiological stress 
responses and, perhaps, physiological responses that would be 
classified as ``distress'' upon exposure to high frequency, mid-
frequency and 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 (i.e., goldfish) that accompanied 
short- and long-term hearing losses. Welch and Welch (1970) reported 
physiological and behavioral stress responses that accompanied damage 
to the inner ears of fish and several mammals.
    Hearing is one of the primary senses marine mammals use to gather 
information about their environment and to communicate with 
conspecifics. Although empirical information on the relationship 
between sensory impairment (TTS, PTS, and acoustic masking) on marine 
mammals remains limited, it seems reasonable to assume that reducing an 
animal's ability to gather information about its environment and to 
communicate with other members of its species would be stressful for 
animals that use hearing as their primary sensory mechanism. Therefore, 
we assume that acoustic exposures sufficient to trigger onset PTS or 
TTS would be accompanied by physiological stress responses because 
terrestrial animals exhibit those responses under similar conditions 
(NRC, 2003). More importantly, marine mammals might experience stress 
responses at received levels lower than those necessary to trigger 
onset TTS. Based on empirical studies of the time required to recover 
from stress

[[Page 33850]]

responses (Moberg, 2000), NMFS also assumes that stress responses could 
persist beyond the time interval required for animals to recover from 
TTS and might result in pathological and pre-pathological states that 
would be as significant as behavioral responses to TTS.

Behavioral Disturbance

    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source 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.
    Exposure of marine mammals to sound sources can result in (but is 
not limited to) no response or any of 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; avoidance; 
habitat abandonment (temporary or permanent); and, in severe cases, 
panic, flight, stampede, or stranding, potentially resulting in death 
(Southall et al., 2007). A review of marine mammal responses to 
anthropogenic sound was first conducted by Richardson (1995). A more 
recent review (Nowacek et al., 2007) addresses studies conducted since 
1995 and focuses on observations where the received sound level of the 
exposed marine mammal(s) was known or could be estimated. The following 
sub-sections provide examples of behavioral responses that provide an 
idea of the variability in behavioral responses that would be expected 
given the differential sensitivities of marine mammal species to sound 
and the wide range of potential acoustic sources to which a marine 
mammal may be exposed. Estimates of the types of behavioral responses 
that could occur for a given sound exposure should be determined from 
the literature that is available for each species, or extrapolated from 
closely related species when no information exists.
    Alteration of Diving or Movement--Changes in dive behavior can vary 
widely. They may consist of increased or decreased dive times and 
surface intervals as well as changes in the rates of ascent and descent 
during a dive. Variations in dive behavior may reflect interruptions in 
biologically significant activities (e.g., foraging) or they may be of 
little biological significance. Variations in dive behavior may also 
expose an animal to potentially harmful conditions (e.g., increasing 
the chance of ship-strike) or may serve as an avoidance response that 
enhances survivorship. The impact of a variation in diving resulting 
from an acoustic exposure depends on what the animal is doing at the 
time of the exposure and the type and magnitude of the response.
    Nowacek et al., (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship-strike. However, the whales did not respond to 
playbacks of either right whale social sounds or vessel noise, 
highlighting the importance of the sound characteristics in producing a 
behavioral reaction. Conversely, Indo-Pacific humpback dolphins have 
been observed to dive for longer periods of time in areas where vessels 
were present and/or approaching (Ng and Leung, 2003). In both of these 
studies, the influence of the sound exposure cannot be decoupled from 
the physical presence of a surface vessel, thus complicating 
interpretations of the relative contribution of each stimulus to the 
response. Indeed, the presence of surface vessels, their approach and 
speed of approach, seemed to be significant factors in the response of 
the Indo-Pacific humpback dolphins (Ng and Leung, 2003). Low frequency 
signals of the Acoustic Thermometry of Ocean Climate (ATOC) sound 
source were not found to affect dive times of humpback whales in 
Hawaiian waters (Frankel and Clark, 2000) or to overtly affect elephant 
seal dives (Costa et al., 2003). They did, however, produce subtle 
effects that varied in direction and degree among the individual seals, 
illustrating the equivocal nature of behavioral effects and consequent 
difficulty in defining and predicting them.
    Foraging--Disruption of feeding behavior can be difficult to 
correlate with anthropogenic sound exposure, so it is usually inferred 
by observed displacement from known foraging areas, the appearance of 
secondary indicators (e.g., bubble nets or sediment plumes), or changes 
in dive behavior. Noise from seismic surveys was not found to impact 
the feeding behavior in western grey whales off the coast of Russia 
(Yazvenko et al., 2007) and sperm whales engaged in foraging dives did 
not abandon dives when exposed to distant signatures of seismic airguns 
(Madsen et al., 2006). Balaenopterid whales exposed to moderate low-
frequency signals similar to the ATOC sound source demonstrated no 
variation in foraging activity (Croll et al., 2001), whereas five out 
of six North Atlantic right whales exposed to an acoustic alarm 
interrupted their foraging dives (Nowacek et al., 2004). Although the 
received sound pressure level at the animals was similar in the latter 
two studies, the frequency, duration, and temporal pattern of signal 
presentation were different. These factors, as well as differences in 
species sensitivity, are likely contributing factors to the 
differential response. A determination of whether foraging disruptions 
incur fitness consequences will require information on or estimates of 
the energetic requirements of the individuals and the relationship 
between prey availability, foraging effort and success, and the life 
history stage of the animal.
    Brownell (2004) reported the behavioral responses of western gray 
whales off the northeast coast of Sakhalin Island to sounds produced by 
seismic activities in that region. In 1997, the gray whales responded 
to seismic activities by changing their swimming speed and orientation, 
respiration rates, and distribution in waters around the seismic 
surveys. In 2001, seismic activities were conducted in a known feeding 
area of these whales and the whales left the feeding area and moved to 
areas farther south in the Sea of Okhotsk. They only returned to the 
feeding area several days after the seismic activities stopped. The 
potential fitness consequences of displacing these

[[Page 33851]]

whales, especially mother-calf pairs and ``skinny whales,'' outside of 
their normal feeding area is not known; however, because gray whales, 
like other large whales, must gain enough energy during the summer 
foraging season to last them the entire year, sounds or other stimuli 
that cause them to abandon a foraging area for several days could 
disrupt their energetics and force them to make trade-offs like 
delaying their migration south, delaying reproduction, reducing growth, 
or migrating with reduced energy reserves.
    Social relationships--Social interactions between mammals can be 
affected by noise via the disruption of communication signals or by the 
displacement of individuals. Disruption of social relationships 
therefore depends on the disruption of other behaviors (e.g., 
avoidance, masking, etc.). Sperm whales responded to military sonar, 
apparently from a submarine, by dispersing from social aggregations, 
moving away from the sound source, remaining relatively silent and 
becoming difficult to approach (Watkins et al., 1985). Social 
disruptions must be considered, however, in context of the 
relationships that are affected. While some disruptions may not have 
deleterious effects, long-term disruptions of mother/calf pairs or 
interruption of mating behaviors have the potential to affect the 
growth and survival or reproductive effort/success of individuals, 
respectively.
    Vocalizations (also see Masking section)--Vocal changes in response 
to anthropogenic noise can occur across the repertoire of sound 
production modes used by marine mammals, such as whistling, 
echolocation click production, calling, and singing. Changes may result 
in response to a need to compete with an increase in background noise 
or may reflect an increased vigilance or startle response. For example, 
in the presence of low-frequency active sonar, humpback whales have 
been observed to increase the length of their ``songs'' (Miller et al., 
2000; Fristrup et al., 2003), possibly due to the overlap in 
frequencies between the whale song and the low-frequency active sonar. 
A similar compensatory effect for the presence of low-frequency vessel 
noise has been suggested for right whales; right whales have been 
observed to shift the frequency content of their calls upward while 
reducing the rate of calling in areas of increased anthropogenic noise 
(Parks et al., 2007). Killer whales off the northwestern coast of the 
United States have been observed to increase the duration of primary 
calls once a threshold in observing vessel density (e.g., whale 
watching) was reached, which has been suggested as a response to 
increased masking noise produced by the vessels (Foote et al., 2004). 
In contrast, both sperm and pilot whales potentially ceased sound 
production during the Heard Island feasibility test (Bowles et al., 
1994), although it cannot be absolutely determined whether the 
inability to acoustically detect the animals was due to the cessation 
of sound production or the displacement of animals from the area.
    Avoidance--Avoidance is the displacement of an individual from an 
area as a result of the presence of a sound. Richardson et al., (1995) 
noted that avoidance reactions are the most obvious manifestations of 
disturbance in marine mammals. It is qualitatively different from the 
flight response, but also differs in the magnitude of the response 
(i.e., directed movement, rate of travel, etc.). Oftentimes avoidance 
is temporary, and animals return to the area once the noise has ceased. 
Longer term displacement is possible, however, which can lead to 
changes in abundance or distribution patterns of the species in the 
affected region if they do not become acclimated to the presence of the 
sound (Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 
2006). Acute avoidance responses have been observed in captive 
porpoises and pinnipeds exposed to a number of different sound sources 
(Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al., 
2006a; Kastelein et al., 2006b). Short term avoidance of seismic 
surveys, low-frequency emissions, and acoustic deterrents has also been 
noted in wild populations of odontocetes (Bowles et al., 1994; Goold, 
1996; 1998; Stone et al., 2000; Morton and Symonds, 2002) and to some 
extent in mysticetes (Gailey et al., 2007), while longer term or 
repetitive/chronic displacement for some dolphin groups and for 
manatees has been suggested to be due to the presence of chronic vessel 
noise (Haviland-Howell et al., 2007; Miksis-Olds et al., 2007).
    Maybaum (1993) conducted sound playback experiments to assess the 
effects of mid-frequency active sonar on humpback whales in Hawaiian 
waters. Specifically, he exposed focal pods to sounds of a 3.3-kHz 
sonar pulse, a sonar frequency sweep from 3.1 to 3.6 kHz, and a control 
(blank) tape while monitoring the behavior, movement, and underwater 
vocalizations. The two types of sonar signals differed in their effects 
on the humpback whales, but both resulted in avoidance behavior. The 
whales responded to the pulse by increasing their distance from the 
sound source and responded to the frequency sweep by increasing their 
swimming speeds and track linearity. In the Caribbean, sperm whales 
avoided exposure to mid-frequency submarine sonar pulses, in the range 
of 1,000 Hz to 10,000 Hz (IWC 2005).
    Kvadsheim et al., (2007) conducted a controlled exposure experiment 
in which killer whales (Orcinus orca) that had been fitted with D-tags 
were exposed to mid-frequency active sonar (Source A: a 1.0 s upsweep 
209 dB @ 1-2 kHz every 10 seconds for 10 minutes; Source B: with a 1.0 
s upsweep 197 dB @ 6-7 kHz every 10 s for 10 min). When exposed to 
Source A, a tagged whale and the group it was traveling with did not 
appear to avoid the source. When exposed to Source B, the tagged whales 
along with other whales that had been carousel feeding, ceased feeding 
during the approach of the sonar and moved rapidly away from the 
source. When exposed to Source B, Kvadsheim and his co-workers reported 
that a tagged killer whale seemed to try to avoid further exposure to 
the sound field by immediately swimming away (horizontally) from the 
source of the sound; by engaging in a series of erratic and frequently 
deep dives that seem to take it below the sound field; or by swimming 
away while engaged in a series of erratic and frequently deep dives. 
Although the sample sizes in this study are too small to support 
statistical analysis, the behavioral responses of the orcas were 
consistent with the results of other studies.
    In 2007, the first in the series of behavioral response studies 
conducted by NMFS and other scientists showed one beaked whale 
(Mesoplodon densirostris) responding to an MFAS playback. The BRS-07 
Cruise report indicates that the playback began when the tagged beaked 
whale was vocalizing at depth (at the deepest part of a typical feeding 
dive), following a previous control with no sound exposure. The whale 
appeared to stop clicking significantly earlier than usual, when 
exposed to mid-frequency signals in the 130-140 dB (rms) range. After a 
few more minutes of the playback, when the received level reached a 
maximum of 140-150 dB, the whale ascended on the slow side of normal 
ascent rates with a longer than normal ascent, at which point the 
exposure was terminated. The BRS-07 Cruise report notes that the 
results are from a single experiment and that a greater sample size is 
needed before robust and definitive conclusions can be drawn (NMFS, 
2008)
    Flight Response--A flight response is a dramatic change in normal 
movement to a directed and rapid movement away from the perceived 
location of a sound

[[Page 33852]]

source. Flight responses have been speculated as being a component of 
marine mammal strandings associated with MFAS activities (Evans and 
England, 2001). If marine mammals respond to Navy vessels that are 
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 
avoidance responses should also increase as received levels of active 
sonar increase (and the ship is, therefore, closer) and as ship speeds 
increase (that is, as approach speeds increase). For example, the 
probability of flight responses in Dall's sheep Ovis dalli dalli (Frid 
2001a, 2001b), ringed seals Phoca hispida (Born et al., 1999), Pacific 
brant (Branta bernicl 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).
    Breathing--Variations in respiration naturally vary with different 
behaviors and variations in respiration rate as a function of acoustic 
exposure can be expected to co-occur with other behavioral reactions, 
such as a flight response or an alteration in diving. However, 
respiration rates in and of themselves may be representative of 
annoyance or an acute stress response. Mean exhalation rates of gray 
whales at rest and while diving were found to be unaffected by seismic 
surveys conducted adjacent to the whale feeding grounds (Gailey et al., 
2007). Studies with captive harbor porpoises showed increased 
respiration rates upon introduction of acoustic alarms (Kastelein et 
al., 2001; Kastelein et al., 2006a) and emissions for underwater data 
transmission (Kastelein et al., 2005). However, exposure of the same 
acoustic alarm to a striped dolphin under the same conditions did not 
elicit a response (Kastelein et al., 2006a), again highlighting the 
importance in understanding species differences in the tolerance of 
underwater noise when determining the potential for impacts resulting 
from anthropogenic sound exposure.

Continued Pre-Disturbance Behavior, Habituation, or No Response

    Under some circumstances, some of the individual marine mammals 
that are exposed to active sonar transmissions will continue their 
normal behavioral activities; in other circumstances, individual 
animals will become aware of the sonar transmissions at lower received 
levels and move to avoid additional exposure or exposures at higher 
received levels (Richardson et al., 1995).
    It is difficult to distinguish between animals that continue their 
pre-disturbance behavior without stress responses, animals that 
continue their behavior but experience stress responses (that is, 
animals that cope with disturbance), animals that habituate to 
disturbance (that is, they may have experienced low-level stress 
responses initially, but those responses abated over time), and animals 
that do not respond to the potential disturbance. Watkins (1986) 
reviewed data on the behavioral reactions of fin, humpback, right and 
minke whales that were exposed to continuous, broadband low-frequency 
shipping and industrial noise in Cape Cod Bay. He concluded that 
underwater sound was the primary cause of behavioral reactions in these 
species of whales and that the whales responded behaviorally to 
acoustic stimuli within their respective hearing ranges. Watkins also 
noted that whales showed the strongest behavioral reactions to sounds 
in the 15 Hz to 28 kHz range, although negative reactions (avoidance, 
interruptions in vocalizations, etc.) were generally associated with 
sounds that were either unexpected, too loud, suddenly louder or 
different, or perceived as being associated with a potential threat 
(such as an approaching ship on a collision course). In particular, 
whales seemed to react negatively when they were within 100 m of the 
source or when received levels increased suddenly in excess of 12 dB 
relative to ambient sounds. At other times, the whales ignored the 
source of the signal and all four species habituated to these sounds.
    Nevertheless, Watkins concluded that whales ignored most sounds in 
the background of ambient noise, including the sounds from distant 
human activities even though these sounds may have had considerable 
energies at frequencies well within the whales' range of hearing. 
Further, he noted that of the whales observed, fin whales were the most 
sensitive of the four species, followed by humpback whales; right 
whales were the least likely to be disturbed and generally did not 
react to low-amplitude engine noise. By the end of his period of study, 
Watkins (1986) concluded that fin and humpback whales have generally 
habituated to the continuous and broad-band noise of Cape Cod Bay while 
right whales did not appear to change their response. As mentioned 
above, animals that habituate to a particular disturbance may have 
experienced low-level stress responses initially, but those responses 
abated over time. In most cases, this likely means a lessened immediate 
potential effect from a disturbance; however, concern exists where the 
habituation occurs in a potentially more harmful situation, for 
example: animals may become more vulnerable to vessel strikes once they 
habituate to vessel traffic (Swingle et al., 1993; Wiley et al., 1995).
    Aicken et al., (2005) monitored the behavioral responses of marine 
mammals to a new low-frequency active sonar system that was being 
developed for use by the British Navy. During those trials, fin whales, 
sperm whales, Sowerby's beaked whales, long-finned pilot whales 
(Globicephala melas), Atlantic white-sided dolphins, and common 
bottlenose dolphins were observed and their vocalizations were 
recorded. These monitoring studies detected no evidence of behavioral 
responses that the investigators could attribute to exposure to the 
low-frequency active sonar during these trials.

Behavioral Responses (Southall et al. (2007))

    Southall et al., (2007) reports the results of the efforts of a 
panel of experts in acoustic research from behavioral, physiological, 
and physical disciplines that convened and reviewed the available 
literature on marine mammal hearing and physiological and behavioral 
responses to human-made sound with the goal of proposing exposure 
criteria for certain effects. This peer-reviewed compilation of 
literature is very valuable, though Southall et al., (2007) note that 
not all data are equal, some have poor statistical power, insufficient 
controls, and/or limited information on received levels, background 
noise, and other potentially important contextual variables--such data 
were reviewed and sometimes used for qualitative illustration but were 
not included in the quantitative analysis for the criteria 
recommendations. All of the studies considered, however, contain an 
estimate of the received sound level when the animal exhibited the 
indicated response.
    In the Southall et al., (2007) publication, for the purposes of

[[Page 33853]]

analyzing responses of marine mammals to anthropogenic sound and 
developing criteria, the authors differentiate between single pulse 
sounds, multiple pulse sounds, and non-pulse sounds. MFAS/HFAS is 
considered a non-pulse sound. Southall et al., (2007) summarize the 
studies associated with low-frequency, mid-frequency, and high-
frequency cetacean and pinniped responses to non-pulse sounds, based 
strictly on received level, in Appendix C of their article 
(incorporated by reference and summarized in the three paragraphs 
below).
    The studies that address responses of low frequency cetaceans to 
non-pulse sounds include data gathered in the field and related to 
several types of sound sources (of varying similarity to MFAS/HFAS) 
including: vessel noise, drilling and machinery playback, low-frequency 
M-sequences (sine wave with multiple phase reversals) playback, 
tactical low-frequency active sonar playback, drill ships, Acoustic 
Thermometry of Ocean Climate (ATOC) source, and non-pulse playbacks. 
These studies generally indicate no (or very limited) responses to 
received levels in the 90 to 120 dB re: 1 [mu]Pa range and an 
increasing likelihood of avoidance and other behavioral effects in the 
120 to 160 dB range. As mentioned earlier, though, contextual variables 
play a very important role in the reported responses and the severity 
of effects are not linear when compared to received level. Also, few of 
the laboratory or field datasets had common conditions, behavioral 
contexts or sound sources, so it is not surprising that responses 
differ.
    The studies that address responses of mid-frequency cetaceans to 
non-pulse sounds include data gathered both in the field and the 
laboratory and related to several different sound sources (of varying 
similarity to MFAS/HFAS) including: Pingers, drilling playbacks, ship 
and ice-breaking noise, vessel noise, Acoustic Harassment Devices 
(AHDs), Acoustic Deterrent Devices (ADDs), MFAS, and non-pulse bands 
and tones. Southall et al., (2007) were unable to come to a clear 
conclusion regarding the results of these studies. In some cases, 
animals in the field showed significant responses to received levels 
between 90 and 120 dB, while in other cases these responses were not 
seen in the 120 to 150 dB range. The disparity in results was likely 
due to contextual variation and the differences between the results in 
the field and laboratory data (animals typically responded at lower 
levels in the field).
    The studies that address responses of high frequency cetaceans to 
non-pulse sounds include data gathered both in the field and the 
laboratory and related to several different sound sources (of varying 
similarity to MFAS/HFAS) including: Pingers, AHDs, and various 
laboratory non-pulse sounds. All of these data were collected from 
harbor porpoises. Southall et al., (2007) concluded that the existing 
data indicate that harbor porpoises are likely sensitive to a wide 
range of anthropogenic sounds at low received levels (~90-120 dB), at 
least for initial exposures. All recorded exposures above 140 dB 
induced profound and sustained avoidance behavior in wild harbor 
porpoises (Southall et al., 2007). Rapid habituation was noted in some 
but not all studies. There is no data to indicate whether other high 
frequency cetaceans are as sensitive to anthropogenic sound as harbor 
porpoises are.
    The studies that address the responses of pinnipeds in water to 
non-pulse sounds include data gathered both in the field and the 
laboratory and related to several different sound sources (of varying 
similarity to MFAS/HFAS) including: AHDs, ATOC, various non-pulse 
sounds used in underwater data communication; underwater drilling, and 
construction noise. Few studies exist with enough information to 
include them in the analysis. The limited data suggested that exposures 
to non-pulse sounds between 90 and 140 dB generally do not result in 
strong behavioral responses in pinnipeds in water, but no data exist at 
higher received levels.
    In addition to summarizing the available data, the authors of 
Southall et al., (2007) developed a severity scaling system with the 
intent of ultimately being able to assign some level of biological 
significance to a response. Following is a summary of their scoring 
system, a comprehensive list of the behaviors associated with each 
score may be found in the report:
    <bullet> 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);
    <bullet> 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);
    <bullet> 7-9 (Behaviors considered likely to affect the 
aforementioned vital rates) includes, but is 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 6 we have summarized the scores that Southall et al., 
(2007) assigned to the papers that reported behavioral responses of 
low-frequency cetaceans, mid-frequency cetaceans, and pinnipeds in 
water to non-pulse sounds. This table is included simply to summarize 
the findings of the studies and opportunistic observations (all of 
which were capable of estimating received level) that Southall et al., 
(2007) compiled in the effort to develop acoustic criteria.

[[Page 33854]]

[GRAPHIC] [TIFF OMITTED] TP13JY09.146

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 quantitative marine mammal data relating the 
exposure of marine mammals to sound to effects on reproduction or 
survival, though data exists for terrestrial species to which we can 
draw comparisons for marine mammals. Several authors have reported that 
disturbance stimuli cause animals to abandon nesting and foraging 
sites, Sutherland and Crockford, 1993), cause animals to increase their 
activity levels and suffer premature deaths or reduced reproductive 
success when their energy expenditures exceed their energy budgets 
(Daan et al., 1996, Feare 1976, Giese 1996, Mullner et al., 2004, 
Waunters et al., 1997), or cause animals to experience higher predation 
rates when they adopt risk-prone foraging or migratory strategies (Frid 
and Dill, 2002). Each of these studies addressed the consequences that 
result when animals shift from one behavioral state (for example, 
resting or foraging) to another behavioral state (avoidance or escape 
behavior) because of human disturbance or disturbance stimuli.
    One consequence of behavioral avoidance results from changing the 
energetics of marine mammals because of the energy required to avoid 
surface vessels or the sound field associated with active sonar (Frid 
and Dill, 2002). Most animals can avoid that energetic cost by swimming 
away at slow speeds or those speeds that are at or near the minimum 
cost of transport (Miksis-Olds, 2006), as has been demonstrated in 
Florida manatees (Hartman, 1979, Miksis-Olds, 2006).
    Those costs increase, however, when animals shift from a resting 
state, which is designed to conserve an animal's energy, to an active 
state that consumes energy the animal would have conserved had it not 
been disturbed. Marine mammals that have been disturbed by 
anthropogenic noise and vessel approaches are commonly reported to 
shift from resting behavioral states to active behavioral states, which 
would imply that they incur an energy cost. Morete et al., (2007) 
reported that undisturbed humpback whale cows that were accompanied by 
their calves were frequently observed resting while their calves 
circled them (milling) and rolling interspersed with dives. When 
vessels approached, the amount of time cows and calves spent resting 
and milling, respectively declined significantly. These results are 
similar to those reported by Scheidat et al. (2004) for the humpback 
whales they observed off the coast of Ecuador.
    Constantine and Brunton (2001) reported that bottlenose dolphins in 
the Bay of Islands, New Zealand only engaged in resting behavior 5% of 
the time when vessels were within 300 meters compared with 83% of the 
time when vessels were not present. Miksis-Olds (2006) and Miksis-Olds 
et al. (2005) reported that Florida manatees in Sarasota Bay, Florida, 
reduced the amount of time they spent milling and increased the amount 
of time they spent feeding when background noise levels increased. 
Although the acute costs of these changes in behavior are not likely to 
exceed an animals' ability to compensate, the chronic costs of these 
behavioral shifts are uncertain.
    Attention is the cognitive process of selectively concentrating on 
one aspect of an animal's environment while ignoring other things 
(Posner, 1994). Because animals (including humans) have limited 
cognitive resources, there is a limit to how much sensory information 
they can process at any time. The phenomenon called ``attentional 
capture'' occurs when a stimulus (usually a stimulus that an animal is 
not concentrating on or attending to) ``captures'' an animal's 
attention. This shift in attention can occur consciously or 
unconsciously (for example, when an animal hears sounds that it 
associates with the approach of a predator) and the shift in attention 
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has 
captured an animal's attention, the animal can respond by ignoring the 
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus 
as a disturbance and respond accordingly, which includes scanning for 
the source of the stimulus or ``vigilance'' (Cowlishaw et al., 2004).
    Vigilance is normally an adaptive behavior that helps animals 
determine the presence or absence of predators, assess their distance 
from conspecifics, or to attend cues from prey (Bednekoff and Lima, 
1998; Treves, 2000). Despite those benefits, however, vigilance has a 
cost of time: when animals focus their attention on specific 
environmental cues, they are not attending to other activities such a 
foraging. These costs have been documented best in foraging animals, 
where vigilance has been shown to substantially reduce feeding rates 
(Saino, 1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002). 
Animals will spend more time being vigilant, which may translate to 
less time foraging or resting, when disturbance stimuli approach them 
more directly, remain at closer distances, have a greater group size 
(for example, multiple surface vessels, which, of note, will not be 
utilized in the NWTRC), or when they co-occur with times that an animal 
perceives increased risk (for example, when they are giving birth or 
accompanied by a calf). Most of the published literature, however, 
suggests that direct approaches will increase the amount of time 
animals will dedicate to being vigilant. For example, bighorn sheep and 
Dall's sheep dedicated more time to

[[Page 33855]]

being vigilant, and less time resting or foraging, when aircraft made 
direct approaches over them (Frid, 2001; Stockwell et al., 1991).
    Several authors have established that long-term and intense 
disturbance stimuli can cause population declines by reducing the body 
condition of individuals that have been disturbed, followed by reduced 
reproductive success, reduced survival, or both (Daan et al., 1996; 
Madsen, 1994; White, 1983). For example, Madsen (1994) reported that 
pink-footed geese (Anser brachyrhynchus) in undisturbed habitat gained 
body mass and had about a 46-percent reproductive success rate compared 
with geese in disturbed habitat (being consistently scared off the 
fields on which they were foraging) which did not gain mass and has a 
17% reproductive success rate. Similar reductions in reproductive 
success have been reported for mule deer (Odocoileus hemionus) 
disturbed by all-terrain vehicles (Yarmoloy et al., 1988), caribou 
disturbed by seismic exploration blasts (Bradshaw et al., 1998), 
caribou disturbed by low-elevation military jet-fights (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 x 10<SUP>3</SUP>kJ/
min), and spent energy fleeing or acting aggressively toward hikers 
(White et al., 1999). Alternately, Ridgway et al., (2006) reported that 
increased vigilance in bottlenose dolphins exposed to sound over a five 
day period did not cause any sleep deprivation or stress effects such 
as changes in cortisol or epinephrine levels.
    On a related note, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing, on a diel cycle (24-hr 
cycle). Substantive behavioral reactions to noise exposure (such as 
disruption of critical life functions, displacement, or avoidance of 
important habitat) are more likely to be significant if they last more 
than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than one day 
and not recurring on subsequent days is not considered particularly 
severe unless it could directly affect reproduction or survival 
(Southall et al., 2007).

Stranding and Mortality

    When a live or dead marine mammal swims or floats onto shore and 
becomes ``beached'' or incapable of returning to sea, the event is 
termed a ``stranding'' (Geraci et al., 1999; Perrin and Geraci, 2002; 
Geraci and Lounsbury, 2005; National Marine Fisheries Service, 2007p). 
The legal definition for a stranding within the United States is that 
(A) ``a marine mammal is dead and is (i) on a beach or shore of the 
United States; or (ii) in waters under the jurisdiction of the United 
States (including any navigable waters); or (B) a marine mammal is 
alive and is (i) on a beach or shore of the United States and is unable 
to return to the water; (ii) on a beach or shore of the United States 
and, although able to return to the water, is in need of apparent 
medical attention; or (iii) in the waters under the jurisdiction of the 
United States (including any navigable waters), but is unable to return 
to its natural habitat under its own power or without assistance.'' (16 
U.S.C. 1421h).
    Marine mammals are known to strand for a variety of reasons, such 
as infectious agents, biotoxicosis, starvation, fishery interaction, 
ship strike, unusual oceanographic or weather events, sound exposure, 
or combinations of these stressors sustained concurrently or in series. 
However, the cause or causes of most strandings are unknown (Geraci et 
al., 1976; Eaton, 1979, Odell et al., 1980; Best, 1982). Numerous 
studies suggest that the physiology, behavior, habitat relationships, 
age, or condition of cetaceans may cause them to strand or might pre-
dispose them to strand when exposed to another phenomenon. These 
suggestions are consistent with the conclusions of numerous other 
studies that have demonstrated that combinations of dissimilar 
stressors commonly combine to kill an animal or dramatically reduce its 
fitness, even though one exposure without the other does not produce 
the same result (Chroussos, 2000; Creel, 2005; DeVries et al., 2003; 
Fair and Becker, 2000; Foley et al., 2001; Moberg, 2000; Relyea, 2005a; 
2005b, Romero, 2004; Sih et al., 2004).
    Several sources have published lists of mass stranding events of 
cetaceans in an attempt to identify relationships between those 
stranding events and military active sonar (Hildebrand, 2004; IWC, 
2005; Taylor et al., 2004). For example, based on a review of stranding 
records between 1960 and 1995, the International Whaling Commission 
(2005) identified ten mass stranding events of Cuvier's beaked whales 
that had been reported and one mass stranding of four Baird's beaked 
whale (Berardius bairdii). The IWC concluded that, out of eight 
stranding events reported from the mid-1980s to the summer of 2003, 
seven had been coincident with the use of MFAS, one of those seven had 
been associated with the use of tactical low-frequency sonar, and the 
remaining stranding event had been associated with the use of seismic 
airguns.
    Most of the stranding events reviewed by the IWC involved beaked 
whales. A mass stranding of Cuvier's beaked whales in the eastern 
Mediterranean Sea occurred in 1996 (Franzis, 1998) and mass stranding 
events involving Gervais' beaked whales, Blainville's beaked whales, 
and Cuvier's beaked whales occurred off the coast of the Canary Islands 
in the late 1980s (Simmonds and Lopez-Jurado, 1991). The stranding 
events that occurred in the Canary Islands and Kyparissiakos Gulf in 
the late 1990s and the Bahamas in 2000 have been the most intensively-
studied mass stranding events and have been associated with naval 
exercises involving the use of MFAS.

Strandings Associated With MFAS

    Over the past 12 years, there have been five stranding events 
coincident with military mid-frequency active sonar use in which 
exposure to sonar is believed by NMFS and the Navy to have been a 
contributing factor: Greece (1996); the Bahamas (2000); Madeira (2000); 
Canary Islands (2002); and Spain (2006). Additionally, in 2004, during 
the RIMPAC exercises, between 150-200 usually pelagic melon-headed 
whales occupied the shallow waters of the Hanalei Bay, Kaua'i, Hawaii 
for over 28 hours. NMFS determined that the mid-frequency sonar was a 
plausible, if not likely, contributing factor in what may have been a 
confluence of events that led to the Hanalei Bay stranding. A number of 
other stranding events coincident with the operation of MFAS including 
the death of beaked whales or other species (minke whales, dwarf sperm 
whales, pilot whales) have been reported; however, the majority have 
not been investigated to the degree necessary to determine the cause of 
the stranding.

[[Page 33856]]

Greece (1996)

    Twelve Cuvier's beaked whales stranded atypically (in both time and 
space) along a 38.2-kilometer strand of the coast of the Kyparissiakos 
Gulf on May 12 and 13, 1996 (Frantzis, 1998). From May 11 through May 
15, the NATO research vessel Alliance was conducting active sonar tests 
with signals of 600 Hz and 3 kHz and source levels of 228 and 226 dB 
re: 1 [mu]Pa, respectively (D'Amico and Verboom, 1998; D'Spain et al., 
2006). The timing and the location of the testing encompassed the time 
and location of the whale strandings (Frantzis, 1998).
    Necropsies of eight of the animals were performed but were limited 
to basic external examination and sampling of stomach contents, blood, 
and skin. No ears or organs were collected, and no histological samples 
were preserved. No apparent abnormalities or wounds were found 
(Frantzis, 2004). Examination of photos of the animals, taken soon 
after their death, revealed that the eyes of at least four of the 
individuals were bleeding. Photos were taken soon after their death 
(Frantzis, 2004). Stomach contents contained the flesh of cephalopods, 
indicating that feeding had recently taken place (Frantzis, 1998).
    All available information regarding the conditions associated with 
this stranding event were compiled, and many potential causes were 
examined including major pollution events, prominent tectonic activity, 
unusual physical or meteorological events, magnetic anomalies, 
epizootics, and conventional military activities (International Council 
for the Exploration of the Sea, 2005a). However, none of these 
potential causes coincided in time or space with the mass stranding, or 
could explain its characteristics (International Council for the 
Exploration of the Sea, 2005a). The robust condition of the animals, 
plus the recent stomach contents, is inconsistent with pathogenic 
causes (Frantzis, 2004). In addition, environmental causes can be ruled 
out as there were no unusual environmental circumstances or events 
before or during this time period and within the general proximity 
(Frantzis, 2004).
    Because of the rarity of this mass stranding of Cuvier's beaked 
whales in the Kyparissiakos Gulf (first one in history), the 
probability for the two events (the military exercises and the 
strandings) to coincide in time and location, while being independent 
of each other, was thought to be extremely low (Frantzis, 1998). 
However, because full necropsies had not been conducted, and no 
abnormalities were noted, the cause of the strandings could not be 
precisely determined (Cox et al., 2006). A Bioacoustics Panel convened 
by NATO concluded that the evidence available did not allow them to 
accept or reject sonar exposures as a causal agent in these stranding 
events. Their official finding was ``An acoustic link can neither be 
clearly established, nor eliminated as a direct or indirect cause for 
the May 1996 strandings.'' The analysis of this stranding event 
provided support for, but no clear evidence for, the cause-and-effect 
relationship of active sonar training activities and beaked whale 
strandings (Cox et al., 2006).

Bahamas (2000)

    NMFS and the Navy prepared a joint report addressing the multi-
species stranding in the Bahamas in 2000, which took place within 24 
hours of U.S. Navy ships using MFAS as they passed through the 
Northeast and Northwest Providence Channels on March 15-16, 2000. The 
ships, which operated both AN/SQS-53C and AN/SQS-56, moved through the 
channel while emitting MFAS pings approximately every 24 seconds. Of 
the 17 cetaceans that stranded over a 36-hr period (Cuvier's beaked 
whales, Blainville's beaked whales, Minke whales, and a spotted 
dolphin), seven animals died on the beach (5 Cuvier's beaked whales, 1 
Blainville's beaked whale, and the spotted dolphin), while the other 10 
were returned to the water alive (though their ultimate fate is 
unknown). As discussed in the Bahamas report (DOC/DON, 2001), there is 
no likely association between the minke whale and spotted dolphin 
strandings and the operation of MFAS.
    Necropsies were performed on five of the stranded beaked whales. 
All five necropsied beaked whales were in good body condition, showing 
no signs of infection, disease, ship strike, blunt trauma, or fishery 
related injuries, and three still had food remains in their stomachs. 
Auditory structural damage was discovered in four of the whales, 
specifically bloody effusions or hemorrhaging around the ears. 
Bilateral intracochlear and unilateral temporal region subarachnoid 
hemorrhage, with blood clots in the lateral ventricles, were found in 
two of the whales. Three of the whales had small hemorrhages in their 
acoustic fats (located along the jaw and in the melon).
    A comprehensive investigation was conducted and all possible causes 
of the stranding event were considered, whether they seemed likely at 
the outset or not. Based on the way in which the strandings coincided 
with ongoing naval activity involving tactical MFAS use, in terms of 
both time and geography, the nature of the physiological effects 
experienced by the dead animals, and the absence of any other acoustic 
sources, the investigation team concluded that MFAS aboard U.S. Navy 
ships that were in use during the active sonar exercise in question 
were the most plausible source of this acoustic or impulse trauma to 
beaked whales. This sound source was active in a complex environment 
that included the presence of a surface duct, unusual and steep 
bathymetry, a constricted channel with limited egress, intensive use of 
multiple, active sonar units over an extended period of time, and the 
presence of beaked whales that appear to be sensitive to the 
frequencies produced by these active sonars. The investigation team 
concluded that the cause of this stranding event was the confluence of 
the Navy MFAS and these contributory factors working together, and 
further recommended that the Navy avoid operating MFAS in situations 
where these five factors would be likely to occur. This report does not 
conclude that all five of these factors must be present for a stranding 
to occur, nor that beaked whales are the only species that could 
potentially be affected by the confluence of the other factors. Based 
on this, NMFS believes that the operation of MFAS in situations where 
surface ducts exist, or in marine environments defined by steep 
bathymetry and/or constricted channels, may increase the likelihood of 
producing a sound field with the potential to cause cetaceans 
(especially beaked whales) to strand, and therefore suggests the need 
for increased vigilance while operating MFAS in these areas, especially 
when beaked whales (or potentially other deep divers) are likely 
present.

Madeira, Spain (2000)

    From May 10-14, 2000, three Cuvier's beaked whales were found 
atypically stranded on two islands in the Madeira archipelago, Portugal 
(Cox et al., 2006). A fourth animal was reported floating in the 
Madeiran waters by fishermen but did not come ashore (Woods Hole 
Oceanographic Institution, 2005). Joint NATO amphibious training 
peacekeeping exercises involving participants from 17 countries and 80 
warships, took place in Portugal during May 2-15, 2000.
    The bodies of the three stranded whales were examined post mortem 
(Woods Hole Oceanographic Institution, 2005), though only one of the 
stranded whales was fresh enough (24 hours after stranding) to be 
necropsied (Cox et al.,

[[Page 33857]]

2006). Results from the necropsy revealed evidence of hemorrhage and 
congestion in the right lung and both kidneys (Cox et al., 2006). There 
was also evidence of intercochlear and intracranial hemorrhage similar 
to that which was observed in the whales that stranded in the Bahamas 
event (Cox et al., 2006). There were no signs of blunt trauma, and no 
major fractures (Woods Hole Oceanographic Institution, 2005). The 
cranial sinuses and airways were found to be clear with little or no 
fluid deposition, which may indicate good preservation of tissues 
(Woods Hole Oceanographic Institution, 2005).
    Several observations on the Madeira stranded beaked whales, such as 
the pattern of injury to the auditory system, are the same as those 
observed in the Bahamas strandings. Blood in and around the eyes, 
kidney lesions, pleural hemorrhages, and congestion in the lungs are 
particularly consistent with the pathologies from the whales stranded 
in the Bahamas, and are consistent with stress and pressure related 
trauma. The similarities in pathology and stranding patterns between 
these two events suggest that a similar pressure event may have 
precipitated or contributed to the strandings at both sites (Woods Hole 
Oceanographic Institution, 2005).
    Even though no definitive causal link can be made between the 
stranding event and naval exercises, certain conditions may have 
existed in the exercise area that, in their aggregate, may have 
contributed to the marine mammal strandings (Freitas, 2004): Exercises 
were conducted in areas of at least 547 fathoms (1,000 m) depth near a 
shoreline where there is a rapid change in bathymetry on the order of 
547 to 3,281 (1,000-6,000 m) fathoms occurring across a relatively 
short horizontal distance (Freitas, 2004); multiple ships were 
operating around Madeira, though it is not known if MFAS was used, and 
the specifics of the sound sources used are unknown (Cox et al., 2006, 
Freitas, 2004); exercises took place in an area surrounded by land 
masses separated by less than 35 nm (65 km) and at least 10 nm (19 km) 
in length, or in an embayment. Exercises involving multiple ships 
employing MFA near land may produce sound directed towards a channel or 
embayment that may cut off the lines of egress for marine mammals 
(Freitas, 2004).

Canary Islands, Spain (2002)

    The southeastern area within the Canary Islands is well known for 
aggregations of beaked whales due to its ocean depths of greater than 
547 fathoms (1,000 m) within a few hundred meters of the coastline 
(Fernandez et al., 2005). On September 24, 2002, 14 beaked whales were 
found stranded on Fuerteventura and Lanzarote Islands in the Canary 
Islands (International Council for Exploration of the Sea, 2005a). 
Seven whales died, while the remaining seven live whales were returned 
to deeper waters (Fernandez et al., 2005). Four beaked whales were 
found stranded dead over the next 3 days either on the coast or 
floating offshore. These strandings occurred within near proximity of 
an international naval exercise that utilized MFAS and involved 
numerous surface warships and several submarines. Strandings began 
about 4 hours after the onset of MFAS activity (International Council 
for Exploration of the Sea, 2005a; Fernandez et al., 2005).
    Eight Cuvier's beaked whales, one Blainville's beaked whale, and 
one Gervais' beaked whale were necropsied, six of them within 12 hours 
of stranding (Fernandez et al., 2005). No pathogenic bacteria were 
isolated from the carcasses (Jepson et al., 2003). The animals 
displayed severe vascular congestion and hemorrhage especially around 
the tissues in the jaw, ears, brain, and kidneys, displaying marked 
disseminated microvascular hemorrhages associated with widespread fat 
emboli (Jepson et al., 2003; International Council for Exploration of 
the Sea, 2005a). Several organs contained intravascular bubbles, 
although definitive evidence of gas embolism in vivo is difficult to 
determine after death (Jepson et al., 2003). The livers of the 
necropsied animals were the most consistently affected organ, which 
contained macroscopic gas-filled cavities and had variable degrees of 
fibrotic encapsulation. In some animals, cavitary lesions had 
extensively replaced the normal tissue (Jepson et al., 2003). Stomachs 
contained a large amount of fresh and undigested contents, suggesting a 
rapid onset of disease and death (Fernandez et al., 2005). Head and 
neck lymph nodes were enlarged and congested, and parasites were found 
in the kidneys of all animals (Fernandez et al., 2005).
    The association of NATO MFAS use close in space and time to the 
beaked whale strandings, and the similarity between this stranding 
event and previous beaked whale mass strandings coincident with active 
sonar use, suggests that a similar scenario and causative mechanism of 
stranding may be shared between the events. Beaked whales stranded in 
this event demonstrated brain and auditory system injuries, 
hemorrhages, and congestion in multiple organs, similar to the 
pathological findings of the Bahamas and Madeira stranding events. In 
addition, the necropsy results of the Canary Islands stranding event 
lead to the hypothesis that the presence of disseminated and widespread 
gas bubbles and fat emboli were indicative of nitrogen bubble 
formation, similar to what might be expected in decompression sickness 
(Jepson et al., 2003; Fern[aacute]ndez et al., 2005).

Spain (2006)

    The Spanish Cetacean Society reported an atypical mass stranding of 
four beaked whales that occurred January 26, 2006, on the southeast 
coast of Spain, near Mojacar (Gulf of Vera) in the Western 
Mediterranean Sea. According to the report, two of the whales were 
discovered the evening of January 26 and were found to be still alive. 
Two other whales were discovered during the day on January 27, but had 
already died. The fourth animal was found dead on the afternoon of 
January 27, a few kilometers north of the first three animals. From 
January 25-26, 2006, Standing North Atlantic Treaty Organization (NATO) 
Response Force Maritime Group Two (five of seven ships including one 
U.S. ship under NATO Operational Control) had conducted active sonar 
training against a Spanish submarine within 50 nm (93 km) of the 
stranding site.
    Veterinary pathologists necropsied the two male and two female 
Cuvier's beaked whales. According to the pathologists, the most likely 
primary cause of this type of beaked whale mass stranding event was 
anthropogenic acoustic activities, most probably anti-submarine MFAS 
used during the military naval exercises. However, no positive acoustic 
link was established as a direct cause of the stranding. Even though no 
causal link can be made between the stranding event and naval 
exercises, certain conditions may have existed in the exercise area 
that, in their aggregate, may have contributed to the marine mammal 
strandings (Freitas, 2004): exercises were conducted in areas of at 
least 547 fathoms (1000 m) depth near a shoreline where there is a 
rapid change in bathymetry on the order of 547 to 3,281 fathoms (1000-
6000 m) occurring across a relatively short horizontal distance 
(Freitas, 2004); multiple ships (in this instance, five) were operating 
MFAS in the same area over extended periods of time (in this case, 20 
hours) in close proximity; Exercises took place in an area surrounded 
by landmasses, or in an embayment. Exercises involving

[[Page 33858]]

multiple ships employing MFAS near land may have produced sound 
directed towards a channel or embayment that may have cut off the lines 
of egress for the affected marine mammals (Freitas, 2004).

Hanalei Bay (2004)

    On July 3-4, 2004, approximately 150-200 melon-headed whales 
occupied the shallow waters of the Hanalei Bay, Kaua'i, Hawaii for over 
28 hours. Attendees of a canoe blessing observed the animals entering 
the Bay in a single wave formation at 7 a.m. on July 3, 2004. The 
animals were observed moving back into the shore from the mouth of the 
Bay at 9 a.m. The usually pelagic animals milled in the shallow bay and 
were returned to deeper water with human assistance beginning at 9:30 
a.m. on July 4, 2004, and were out of sight by 10:30 a.m.
    Only one animal, a calf, was known to have died following this 
event. The animal was noted alive and alone in the Bay on the afternoon 
of July 4, 2004 and was found dead in the Bay the morning of July 5, 
2004. A full necropsy, magnetic resonance imaging, and computerized 
tomography examination were performed on the calf to determine the 
manner and cause of death. The combination of imaging, necropsy and 
histological analyses found no evidence of infectious, internal 
traumatic, congenital, or toxic factors. Although cause of death could 
not be definitively determined, it is likely that maternal separation, 
poor nutritional condition, and dehydration contributed to the final 
demise of the animal. Although we do not know when the calf was 
separated from its mother, the movement into the Bay, the milling and 
re-grouping may have contributed to the separation or lack of nursing 
especially if the maternal bond was weak or this was a primiparous 
calf.
    Environmental factors, abiotic and biotic, were analyzed for any 
anomalous occurrences that would have contributed to the animals 
entering and remaining in Hanalei Bay. The Bay's bathymetry is similar 
to many other sites within the Hawaiian Island chain and dissimilar to 
sites that have been associated with mass strandings in other parts of 
the United States. The weather conditions appeared to be normal for 
that time of year with no fronts or other significant features noted. 
There was no evidence of unusual distribution or occurrence of predator 
or prey species, or unusual harmful algal blooms. Weather patterns and 
bathymetry that have been associated with mass strandings elsewhere 
were not found to occur in this instance.
    A separate event involving melon-headed whales and rough-toothed 
dolphins took place over the same period of time in the Northern 
Mariana Islands (Jefferson et al., 2006), which is several thousand 
miles from Hawaii. Some 500-700 melon-headed whales came into Sasanhaya 
Bay on 4 July 2004 on the island of Rota and then left of their own 
accord after 5.5 hours; no known active sonar transmissions occurred in 
the vicinity of that event. Global reports of these types of events or 
sightings are of great interest to the scientific community and 
continuing efforts to enhance reporting in island nations will 
contribute to our increased understanding of animal behavior and 
potential causes of stranding events. Exactly what, if any, 
relationship this event has to the simultaneous events in Hawaii and 
whether they might be related to some common factor (e.g., there was a 
full moon on July 2, 2004) is and will likely remain unknown. However, 
these two synchronous, nearshore events involving a rarely-sighted 
species are curious and may point to the range of potential 
contributing factors for which we lack detailed understanding and which 
the authors acknowledged might have played some role in the 
``confluence of events'' in Hanalei Bay.
    The Hanalei event was spatially and temporally correlated with 
RIMPAC. Official sonar training and tracking exercises in the Pacific 
Missile Range Facility (PMRF) warning area did not commence until 
approximately 8 a.m. on July 3 and were thus ruled out as a possible 
trigger for the initial movement into the Bay.
    However, six naval surface vessels transiting to the operational 
area on July 2 intermittently transmitted active sonar (for 
approximately 9 hours total from 1:15 p.m. to 12:30 a.m.) as they 
approached from the south. The potential for these transmissions to 
have triggered the whales' movement into Hanalei Bay was investigated. 
Analyses with the information available indicated that animals to the 
south and east of Kaua'i could have detected active sonar transmissions 
on July 2, and reached Hanalei Bay on or before 7 a.m. on July 3, 2004. 
However, data limitations regarding the position of the whales prior to 
their arrival in the Bay, the magnitude of sonar exposure, behavioral 
responses of melon-headed whales to acoustic stimuli, and other 
possible relevant factors preclude a conclusive finding regarding the 
role of sonar in triggering this event. Propagation modeling suggest 
that transmissions from sonar use during the July 3 exercise in the 
PMRF warning area may have been detectable at the mouth of the Bay. If 
the animals responded negatively to these signals, it may have 
contributed to their continued presence in the Bay. The U.S. Navy 
ceased all active sonar transmissions during exercises in this range on 
the afternoon of July 3, 2004. Subsequent to the cessation of sonar 
use, the animals were herded out of the Bay.
    While causation of this stranding event may never be unequivocally 
determined, we consider the active sonar transmissions of July 2-3, 
2004, a plausible, if not likely, contributing factor in what may have 
been a confluence of events. This conclusion is based on: (1) The 
evidently anomalous nature of the stranding; (2) its close 
spatiotemporal correlation with wide-scale, sustained use of sonar 
systems previously associated with stranding of deep-diving marine 
mammals; (3) the directed movement of two groups of transmitting 
vessels toward the southeast and southwest coast of Kauai; (4) the 
results of acoustic propagation modeling and an analysis of possible 
animal transit times to the Bay; and (5) the absence of any other 
compelling causative explanation. The initiation and persistence of 
this event may have resulted from an interaction of biological and 
physical factors. The biological factors may have included the presence 
of an apparently uncommon, deep-diving cetacean species (and possibly 
an offshore, non-resident group), social interactions among the animals 
before or after they entered the Bay, and/or unknown predator or prey 
conditions. The physical factors may have included the presence of 
nearby deep water, multiple vessels transiting in a directed manner 
while transmitting active sonar over a sustained period, the presence 
of surface sound ducting conditions, and/or intermittent and random 
human interactions while the animals were in the Bay.

Association Between Mass Stranding Events and Exposure to MFAS

    Several authors have noted similarities between some of these 
stranding incidents: They occurred in islands or archipelagoes with 
deep water nearby, several appeared to have been associated with 
acoustic waveguides like surface ducting, and the sound fields created 
by ships transmitting MFAS (Cox et al., 2006, D'Spain et al., 2006). 
Although Cuvier's beaked whales have been the most common species 
involved in these stranding events (81% of the total number of stranded 
animals), other beaked whales (including Mesoplodon europeaus, M. 
densirostris, and

[[Page 33859]]

Hyperoodon ampullatus) comprise 14% of the total. Other species, such 
as Kogia breviceps, have stranded in association with the operation of 
MFAS, but in much lower numbers and less consistently than beaked 
whales.
    Based on the evidence available, however, we cannot determine 
whether (a) Cuvier's beaked whale is more prone to injury from high-
intensity sound than other species, (b) their behavioral responses to 
sound makes them more likely to strand, or (c) they are more likely to 
be exposed to MFAS than other cetaceans (for reasons that remain 
unknown). Because the association between active sonar exposures and 
marine mammals mass stranding events is not consistent--some marine 
mammals strand without being exposed to active sonar and some sonar 
transmissions are not associated with marine mammal stranding events 
despite their co-occurrence--other risk factors or a grouping of risk 
factors probably contribute to these stranding events.

Behaviorally Mediated Responses to MFAS That May Lead to Stranding

    Although the confluence of Navy MFAS with the other contributory 
factors noted in the report was identified as the cause of the 2000 
Bahamas stranding event, the specific mechanisms that led to that 
stranding (or the others) are not understood, and there is uncertainty 
regarding the ordering of effects that led to the stranding. It is 
unclear whether beaked whales were directly injured by sound 
(acoustically mediated bubble growth, addressed above) prior to 
stranding or whether a behavioral response to sound occurred that 
ultimately caused the beaked whales to be injured and to strand.
    Although causal relationships between beaked whale stranding events 
and active sonar remain unknown, several authors have hypothesized that 
stranding events involving these species in the Bahamas and Canary 
Islands may have been triggered when the whales changed their dive 
behavior in a startled response to exposure to active sonar or to 
further avoid exposure (Cox et al., 2006; Rommel et al., 2006). These 
authors proposed three mechanisms by which the behavioral responses of 
beaked whales upon being exposed to active sonar might result in a 
stranding event. These include: gas bubble formation caused by 
excessively fast surfacing; remaining at the surface too long when 
tissues are supersaturated with nitrogen; or diving prematurely when 
extended time at the surface is necessary to eliminate excess nitrogen. 
More specifically, beaked whales that occur in deep waters that are in 
close proximity to shallow waters (for example, the ``canyon areas'' 
that are cited in the Bahamas stranding event; see D'Spain and D'Amico, 
2006), may respond to active sonar by swimming into shallow waters to 
avoid further exposures and strand if they were not able to swim back 
to deeper waters. Second, beaked whales exposed to active sonar might 
alter their dive behavior. Changes in their dive behavior might cause 
them to remain at the surface or at depth for extended periods of time 
which could lead to hypoxia directly by increasing their oxygen demands 
or indirectly by increasing their energy expenditures (to remain at 
depth) and increase their oxygen demands as a result. If beaked whales 
are at depth when they detect a ping from an active sonar transmission 
and change their dive profile, this could lead to the formation of 
significant gas bubbles, which could damage multiple organs or 
interfere with normal physiological function (Cox et al., 2006; Rommel 
et al., 2006; Zimmer and Tyack, 2007). Baird et al., (2005) found that 
slow ascent rates from deep dives and long periods of time spent within 
50 m of the surface were typical for both Cuvier's and Blainville's 
beaked whales, the two species involved in mass strandings related to 
naval MFAS. These two behavioral mechanisms may be necessary to purge 
excessive dissolved nitrogen concentrated in their tissues during their 
frequent long dives (Baird et al., 2005). Baird et al., (2005) further 
suggests that abnormally rapid ascents or premature dives in response 
to high-intensity active sonar could indirectly result in physical harm 
to the beaked whales, through the mechanisms described above (gas 
bubble formation or non-elimination of excess nitrogen).
    Because many species of marine mammals make repetitive and 
prolonged dives to great depths, it has long been assumed that marine 
mammals have evolved physiological mechanisms to protect against the 
effects of rapid and repeated decompressions. Although several 
investigators have identified physiological adaptations that may 
protect marine mammals against nitrogen gas supersaturation (alveolar 
collapse and elective circulation; Kooyman et al., 1972; Ridgway and 
Howard, 1979), Ridgway and Howard (1979) reported that bottlenose 
dolphins (Tursiops truncatus) that were trained to dive repeatedly had 
muscle tissues that were substantially supersaturated with nitrogen 
gas. Houser et al. (2001) used these data to model the accumulation of 
nitrogen gas within the muscle tissue of other marine mammal species 
and concluded that cetaceans that dive deep and have slow ascent or 
descent speeds would have tissues that are more supersaturated with 
nitrogen gas than other marine mammals. Based on these data, Cox et 
al., (2006) hypothesized that a critical dive sequence might make 
beaked whales more prone to stranding in response to acoustic 
exposures. The sequence began with (1) very deep (to depths of up to 2 
kilometers) and long (as long as 90 minutes) foraging dives with (2) 
relatively slow, controlled ascents, followed by (3) a series of 
``bounce'' dives between 100 and 400 meters in depth (also see Zimmer 
and Tyack, 2007). They concluded that acoustic exposures that disrupted 
any part of this dive sequence (for example, causing beaked whales to 
spend more time at surface without the bounce dives that are necessary 
to recover from the deep dive) could produce excessive levels of 
nitrogen supersaturation in their tissues, leading to gas bubble and 
emboli formation that produces pathologies similar to decompression 
sickness.
    Recently, Zimmer and Tyack (2007) modeled nitrogen tension and 
bubble growth in several tissue compartments for several hypothetical 
dive profiles and concluded that repetitive shallow dives (defined as a 
dive where depth does not exceed the depth of alveolar collapse, 
approximately 72 m for Ziphius), perhaps as a consequence of an 
extended avoidance reaction to active sonar sound, could pose a risk 
for decompression sickness and that this risk should increase with the 
duration of the response. Their models also suggested that 
unrealistically rapid ascent rates of ascent from normal dive behaviors 
are unlikely to result in supersaturation to the extent that bubble 
formation would be expected. Tyack et al., (2006) suggested that emboli 
observed in animals exposed to MFAS (Jepson et al., 2003; Fernandez et 
al., 2005) could stem from a behavioral response that involves repeated 
dives shallower than the depth of lung collapse. Given that nitrogen 
gas accumulation is a passive process (i.e. nitrogen is metabolically 
inert), a bottlenose dolphin was trained to repetitively dive a profile 
predicted to elevate nitrogen saturation to the point that nitrogen 
bubble formation was predicted to occur. However, inspection of the 
vascular system of the dolphin via ultrasound did not demonstrate the 
formation of asymptomatic nitrogen gas bubbles (Houser et al., 2007). 
Baird et

[[Page 33860]]

al., (2008), in a beaked whale tagging study off Hawaii, showed that 
deep dives are equally common during day or night, but ``bounce dives'' 
are typically a daytime behavior, possibly associated with visual 
predator avoidance (Baird et al., 2008). This may indicate that 
``bounce dives'' are associated with something other than behavioral 
regulation of dissolved nitrogen levels, which would be necessary day 
and night.
    Despite the many theories involving bubble formation (both as a 
direct cause of injury (see Acoustically Mediated Bubble Growth 
Section) and an indirect cause of stranding (See Behaviorally Mediated 
Bubble Growth Section), Southall et al., (2007) summarizes that there 
is either scientific disagreement or a lack of information regarding 
each of the following important points: (1) Received acoustical 
exposure conditions for animals involved in stranding events; (2) 
pathological interpretation of observed lesions in stranded marine 
mammals; (3) acoustic exposure conditions required to induce such 
physical trauma directly; (4) whether noise exposure may cause 
behavioral reactions (such as atypical diving behavior) that 
secondarily cause bubble formation and tissue damage; and (5) the 
extent the post mortem artifacts introduced by decomposition before 
sampling, handling, freezing, or necropsy procedures affect 
interpretation of observed lesions.
    Of note, no major ASW training exercises are proposed to be 
conducted in the NWTRC. The exercises utilizing MFAS will not utilize 
more than one surface vessel MFAS source at once. Additionally, while 
beaked whales may be present in the NWTRC where surface duct and steep 
bathymetry (in the form of sea mounts) characteristics exist, none of 
the training events will take place in a location having a constricted 
channel less than 35 miles wide or with limited egress similar to the 
Bahamas. Moreover, no sonar is proposed to be used in the Inshore area 
east of the mouth of the Strait of Juan de Fuca. Additionally, only 
approximately 110 hours of the highest power surface vessel MFAS use 
will be conducted annually (in short duration 1.5 hour exercises) in 
the NWTRC per year. Although the five environmental factors believed to 
have contributed to the Bahamas stranding (at least 3 surface vessel 
MFAS sources operating simultaneously or in conjunction with one 
another, beaked whale presence, surface ducts, steep bathymetry, and 
constricted channels with limited egress) will not be present during 
exercises in NWTRC, NMFS recommends caution when either steep 
bathymetry, surface ducting conditions, or a constricted channel is 
present when mid-frequency active sonar is employed and cetaceans 
(especially beaked whales) are present.

Exposure to Underwater Detonation of Explosives

    Some of the Navy's training exercises include the underwater 
detonation of explosives. For many of the exercises discussed, inert 
ordnance is used for a subset of the exercises. For exercises that 
involve ``shooting'' at a target that is above the surface of the 
water, underwater explosions only occur when the target is missed, 
which is the minority of the time (the Navy has historical hit/miss 
ratios and uses them in their exposure estimates). The underwater 
explosion from a weapon would send a shock wave and blast noise through 
the water, release gaseous by-products, create an oscillating bubble, 
and cause a plume of water to shoot up from the water surface. The 
shock wave and blast noise are of most concern to marine animals. 
Depending on the intensity of the shock wave and size, location, and 
depth of the animal, an animal can be injured, killed, suffer non-
lethal physical effects, experience hearing related effects with or 
without behavioral responses, or exhibit temporary behavioral responses 
or tolerance from hearing the blast sound. Generally, exposures to 
higher levels of impulse and pressure levels would result in worse 
impacts to an individual animal.
    Injuries resulting from a shock wave take place at boundaries 
between tissues of different density. Different velocities are imparted 
to tissues of different densities, and this can lead to their physical 
disruption. Blast effects are greatest at the gas-liquid interface 
(Landsberg, 2000). Gas-containing organs, particularly the lungs and 
gastrointestinal tract, are especially susceptible (Goertner, 1982; 
Hill, 1978; Yelverton et al., 1973). In addition, gas-containing organs 
including the nasal sacs, larynx, pharynx, trachea, and lungs may be 
damaged by compression/expansion caused by the oscillations of the 
blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls can 
bruise or rupture, with subsequent hemorrhage and escape of gut 
contents into the body cavity. Less severe gastrointestinal tract 
injuries include contusions, petechiae (small red or purple spots 
caused by bleeding in the skin), and slight hemorrhaging (Yelverton et 
al., 1973).
    Because the ears are the most sensitive to pressure, they are the 
organs most sensitive to injury (Ketten, 2000). Sound-related trauma 
associated with blast noise can be theoretically distinct from injury 
from the shock wave, particularly farther from the explosion. If an 
animal is able to hear a noise, at some level it can fatigue or damage 
its hearing by causing decreased sensitivity (Ketten, 1995) (See Noise-
induced Threshold Shift Section above). Sound-related trauma can be 
lethal or sublethal. Lethal impacts are those that result in immediate 
death or serious debilitation in or near an intense source and are not, 
technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts 
include hearing loss, which is caused by exposures to perceptible 
sounds. Severe damage (from the shock wave) to the ears includes 
tympanic membrane rupture, fracture of the ossicles, damage to the 
cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle 
ear. Moderate injury implies partial hearing loss due to tympanic 
membrane rupture and blood in the middle ear. Permanent hearing loss 
also can occur when the hair cells are damaged by one very loud event, 
as well as by prolonged exposure to a loud noise or chronic exposure to 
noise. The level of impact from blasts depends on both an animal's 
location and, at outer zones, on its sensitivity to the residual noise 
(Ketten, 1995).
    There have been fewer studies addressing the behavioral effects of 
explosives on marine mammals than MFAS/HFAS. However, though the nature 
of the sound waves emitted from an explosion is different (in shape and 
rise time) from MFAS/HFAS, we still anticipate the same sorts of 
behavioral responses (see Exposure to MFAS/HFAS: Behavioral Disturbance 
Section) to result from repeated explosive detonations (a smaller range 
of likely less severe responses would be expected to occur as a result 
of exposure to a single explosive detonation).

Potential Effects of Vessel Movement and Collisions

    Vessel movement in the vicinity of marine mammals has the potential 
to result in either a behavioral response or a direct physical 
interaction. Both scenarios are discussed below.

Vessel Movement

    There are limited data concerning marine mammal behavioral 
responses to vessel traffic and vessel noise, and a lack of consensus 
among scientists with respect to what these responses mean or whether 
they result in short-term or long-term adverse effects. In those cases 
where there is a busy shipping lane or where there is large amount of 
vessel

[[Page 33861]]

traffic, marine mammals may experience acoustic masking (Hildebrand, 
2005) if they are present in the area (e.g., killer whales in Puget 
Sound; Foote et al., 2004; Holt et al., 2008). In cases where vessels 
actively approach marine mammals (e.g., whale watching or dolphin 
watching boats), scientists have documented that animals exhibit 
altered behavior such as increased swimming speed, erratic movement, 
and active avoidance behavior (Bursk, 1983; Acevedo, 1991; Baker and 
MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 2002; 
Constantine et al., 2003), reduced blow interval (Ritcher et al., 
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and 
the shift of behavioral activities which may increase energetic costs 
(Constantine et al., 2003; 2004)). A detailed review of marine mammal 
reactions to ships and boats is available in Richardson et al. (1995). 
For each of the marine mammals taxonomy groups, Richardson et al. 
(1995) provided the following assessment regarding cetacean reactions 
to vessel traffic:
    Toothed whales: ``In summary, toothed whales sometimes show no 
avoidance reaction to vessels, or even approach them. However, 
avoidance can occur, especially in response to vessels of types used to 
chase or hunt the animals. This may cause temporary displacement, but 
we know of no clear evidence that toothed whales have abandoned 
significant parts of their range because of vessel traffic.''
    Baleen whales: ``When baleen whales receive low-level sounds from 
distant or stationary vessels, the sounds often seem to be ignored. 
Some whales approach the sources of these sounds. When vessels approach 
whales slowly and non-aggressively, whales often exhibit slow and 
inconspicuous avoidance maneuvers. In response to strong or rapidly 
changing vessel noise, baleen whales often interrupt their normal 
behavior and swim rapidly away. Avoidance is especially strong when a 
boat heads directly toward the whale.''
    It is important to recognize that behavioral responses to stimuli 
are complex and influenced to varying degrees by a number of factors 
such as species, behavioral contexts, geographical regions, source 
characteristics (moving or stationary, speed, direction, etc.), prior 
experience of the animal, and physical status of the animal. For 
example, studies have shown that beluga whales reacted differently when 
exposed to vessel noise and traffic. In some cases, nave beluga whales 
exhibited rapid swimming from ice-breaking vessels up to 80 km away, 
and showed changes in surfacing, breathing, diving, and group 
composition in the Canadian high Arctic where vessel traffic is rare 
(Finley et al., 1990). In other cases, beluga whales were more tolerant 
of vessels, but differentially responsive by reducing their calling 
rates, to certain vessels and operating characteristics (especially 
older animals) in the St. Lawrence River where vessel traffic is common 
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales 
continued to feed when surrounded by fishing vessels and resisted 
dispersal even when purposefully harassed (Fish and Vania, 1971).
    In reviewing more than 25 years of whale observation data, Watkins 
(1986) concluded that whale reactions to vessel traffic were ``modified 
by their previous experience and current activity: habituation often 
occurred rapidly, attention to other stimuli or preoccupation with 
other activities sometimes overcame their interest or wariness of 
stimuli.'' Watkins noticed that over the years of exposure to ships in 
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed 
from frequent positive (such as approaching vessels) interest to 
generally uninterested reactions; finback whales (B. physalus) changed 
from mostly negative (such as avoidance) to uninterested reactions; 
right whales (Eubalaena glacialis) apparently continued the same 
variety of responses (negative, uninterested, and positive responses) 
with little change; and humpbacks (Megaptera novaeangliae) dramatically 
changed from mixed responses that were often negative to often strongly 
positive reactions. Watkins (1986) summarized that ``whales near shore, 
even in regions with low vessel traffic, generally have become less 
wary of boats and their noises, and they have appeared to be less 
easily disturbed than previously. In particular locations with intense 
shipping and repeated approaches by boats (such as the whale-watching 
areas of Stellwagen Bank), more and more whales had P [positive] 
reactions to familiar vessels, and they also occasionally approached 
other boats and yachts in the same ways.''
    The Northwest Training Range Complex is well traveled by a variety 
of commercial and recreational vessels and a fair portion of the marine 
mammals in the area are expected to be habituated to vessel noise. 
Washington state handles seven percent of the country's exports and six 
percent of its imports. Cruise ships make daily use of the Seattle 
Port. A substantial volume of small boat traffic, primarily 
recreational, occurs throughout Puget Sound, which has 244 marinas with 
39,400 moorage slips and another 331 launch sites for smaller boats.
    As described in the Description of the Specified Activity section, 
training exercises involving vessel movements occur intermittently and 
are variable in duration, ranging from a few hours up to 2 weeks. 
During training, speeds vary and depend on the specific type of 
activity, although 10-14 knots is considered the typical speed. 
Approximately 490 activities that involve Navy vessels occur within the 
Study Area during a typical year. Training activities are widely 
dispersed throughout the large OPAREA, which encompasses 122,468 nm\2\ 
(420,054 km\2\). Consequently, the density of Navy ships within the 
Study Area at any given time is low.
    Moreover, naval vessels transiting the study area or engaging in 
the training exercises will not actively or intentionally approach a 
marine mammal or change speed drastically. While in transit, naval 
vessels will be alert at all times, use extreme caution, and proceed at 
a ``safe speed'' so that the vessel can take proper and effective 
action to avoid a collision with any marine animal and can be stopped 
within a distance appropriate to the prevailing circumstances and 
conditions. When whales have been sighted in the area, Navy vessels 
will increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and would be dictated by environmental and other 
conditions (e.g., safety, weather).
    Although the radiated sound from Navy vessels will be audible to 
marine mammals over a large distance, it is unlikely that animals will 
respond behaviorally (in a manner that NMFS would consider MMPA 
harassment) to low-level distant shipping noise as the animals in the 
area are likely to be habituated to such noises (Nowacek et al., 2004). 
In light of these facts, NMFS does not expect the Navy's vessel 
movements to result in Level B harassment.

Vessel Strike

    Commercial and Navy ship strikes of cetaceans can cause major 
wounds, which may lead to the death of the animal. An animal at the 
surface could be struck directly by a vessel, a surfacing animal could 
hit the bottom of a vessel, or an animal just below the surface could 
be cut by a vessel's

[[Page 33862]]

propeller. The severity of injuries typically depends on the size and 
speed of the vessel (Knowlton and Kraus, 2001; Laist et al. 2001; 
Vanderlaan and Taggart, 2007).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (for example, the sperm whale). In 
addition, some baleen whales, such as the North Atlantic right whale 
seem generally unresponsive to vessel sound, making them more 
susceptible to vessel collisions (Nowacek et al., 2004). These species 
are primarily large, slow-moving whales. Smaller marine mammals (for 
example, bottlenose dolphin) move quickly through the water column and 
are often seen riding the bow wave of large ships. Marine mammal 
responses to vessels may include avoidance and changes in dive pattern 
(NRC, 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel speed is a principal factor in 
whether a vessel strike results in death (Knowlton and Kraus, 2001; 
Laist et al., 2001, Jensen and Silber, 2003; Vanderlaan and Taggart, 
2007). In assessing records in which vessel speed was known, Laist et 
al. (2001) found a direct relationship between the occurrence of a 
whale strike and the speed of the vessel involved in the collision. The 
authors concluded that most deaths occurred when a vessel was traveling 
in excess of 13 knots.
    Jensen and Silber (2003) detailed 292 records of known or probable 
ship strikes of all large whale species from 1975 to 2002. Of these, 
vessel speed at the time of collision was reported for 58 cases. Of 
these cases, 39 (or 67%) resulted in serious injury or death (19 or 33% 
resulted in serious injury as determined by blood in the water, 
propeller gashes or severed tailstock, and fractured skull, jaw, 
vertebrae, hemorrhaging, massive bruising or other injuries noted 
during necropsy and 20 to 35% resulted in death). Operating speeds of 
vessels that struck various species of large whales ranged from 2 to 51 
knots. The majority (79%) of these strikes occurred at speeds of 13 
knots or greater. The average speed that resulted in serious injury or 
death was 18.6 knots. Pace and Silber (2005) found that the probability 
of death or serious injury increased rapidly with increasing vessel 
speed. Specifically, the predicted probability of serious injury or 
death increased from 45% to 75% as vessel speed increased from 10 to 14 
knots, and exceeded 90% at 17 knots. Higher speeds during collisions 
result in greater force of impact, but higher speeds also appear to 
increase the chance of severe injuries or death by pulling whales 
toward the vessel. Computer simulation modeling showed that 
hydrodynamic forces pulling whales toward the vessel hull increase with 
increasing speed (Clyne, 1999, Knowlton et al., 1995).
    The Jensen and Silber (2003) report notes that the database 
represents a minimum number of collisions, because the vast majority 
probably go undetected or unreported. In contrast, Navy vessels are 
likely to detect any strike that does occur, and they are required to 
report all ship strikes involving marine mammals. Overall, the 
percentages of Navy traffic relative to overall large shipping traffic 
are very small (on the order of 2%).
    The ability of a ship to avoid a collision and to detect a 
collision depends on a variety of factors, including environmental 
conditions, ship design, size, and manning. The majority of ships 
participating in NWTRC training activities have a number of advantages 
for avoiding ship strikes as compared to most commercial merchant 
vessels, including the following:
    <bullet> Navy ships have their bridges positioned forward, offering 
good visibility ahead of the bow.
    <bullet> Crew size is much larger than that of merchant ships 
allowing for more potential observers on the bridge.
    <bullet> Dedicated lookouts are posted during a training activity 
scanning the ocean for anything detectable in the water; anything 
detected is reported to the Officer of the Deck.
    <bullet> Navy lookouts receive extensive training including Marine 
Species Awareness Training designed to provide marine species detection 
cues and information necessary to detect marine mammals.
    <bullet> Navy ships are generally much more maneuverable than 
commercial merchant vessels.
    The Navy has adopted mitigation measures to reduce the potential 
for collisions with surfaced marine mammals. For a thorough discussion 
of mitigation measures, please see the Mitigation section. Briefly, 
these measures include:
    <bullet> At all times when vessels are underway, trained lookouts 
are used to detect all objects on the surface of the water, including 
marine mammals.
    <bullet> Reasonable and prudent actions are implemented to avoid 
the close interaction of Navy assets and marine mammals.
    <bullet> While in transit, naval vessels will be alert at all 
times, use extreme caution, and proceed at a ``safe speed'' so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    Based on the implementation of Navy mitigation measures and the 
relatively low density of Navy ships in the Study Area, NMFS has 
concluded preliminarily that the probability of a ship strike is very 
low, especially for dolphins and porpoises, killer whales, social 
pelagic odontocetes and pinnipeds that are highly visible, and/or 
comparatively small and maneuverable. Though more probable, NMFS also 
believes that the likelihood of a Navy vessel striking a mysticete or 
sperm whale is low. The Navy did not request take from a ship strike 
and based on our preliminary determination, NMFS is not recommending 
that they modify their request at this time. However, NMFS is currently 
engaged in an internal Section 7 consultation under the ESA and the 
outcome of that consultation will further inform our final decision.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The NDAA of 2004 amended 
the MMPA as it relates to military-readiness activities and the ITA 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity.'' The 
training activities described in the NWTRC application are considered 
military readiness activities.
    NMFS reviewed the proposed NWTRC activities and the proposed NWTRC 
mitigation measures as described in the Navy's LOA application to 
determine if they would result in the least practicable adverse effect 
on marine mammals, which includes 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 effectiveness of the ``military-
readiness activity.'' NMFS determined that further discussion was 
necessary regarding the use of MFAS/

[[Page 33863]]

HFAS for training in the Inshore Area that contains the southern 
resident killer whale critical habitat.
    To address the concerns above, the Navy clarified for NMFS 
(subsequent to their submittal of the LOA application) that no training 
utilizing MFAS/HFAS had occurred in the Inshore Area of NWTRC for the 
last six years, that it is not being conducted now, and that there are 
no plans to utilize MFAS/HFAS in the Inshore Area. This information has 
been factored into NMFS' effects analysis.. Because MFAS/HFAS will not 
be used in this area, there is no reason to authorize take from these 
activities. However, the Navy indicated that should their plans change 
in the future they will request authorization under the MMPA. The Navy 
further explained that no explosive training occurs in the Inshore Area 
other than the annual detonation of four 2.5lb charges, which are not 
anticipated to result in the take of marine mammals. Included below are 
the mitigation measures the Navy proposed (see ``Mitigation Measures 
Proposed in the Navy's LOA Application'')

Mitigation Measures Proposed in the Navy's LOA Application

    This section includes the protective measures proposed by the Navy 
and is taken directly from their application (with the exception of 
headings, which have been modified for increased clarity within the 
context of this proposed rule). In their proposed mitigation, the Navy 
has included measures to protect sea turtles--those measures are 
included here as part of the Navy's proposed action. Although measures 
to protect sea turtles are important, they are not required by the 
MMPA, and therefore, will not be codified through this regulation or 
required in any subsequent MMPA LOA. Measures to protect sea turtles 
will, however, be addressed in the Endangered Species Act section 7 
consultation.

General Maritime Measures for All Training at Sea

Personnel Training (for All Training Types)

    The use of shipboard lookouts is a critical component of all Navy 
protective measures. Lookout duties require that they report all 
objects sighted in the water to the officer of the deck (OOD) (e.g., 
trash, a periscope, marine mammals, sea turtles) and all disturbances 
(e.g., surface disturbance, discoloration) that may be indicative of a 
threat to the vessel and its crew. There are personnel serving as 
lookouts on station at all times (day and night) when a ship or 
surfaced submarine is moving through the water.
    <bullet> All commanding officers (COs), executive officers (XOs), 
lookouts, officers of the deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews will complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts will complete both parts one 
and two of the MSAT; part two is optional for other personnel. This 
training addresses the lookout's role in environmental protection, laws 
governing the protection of marine species, Navy stewardship 
commitments and general observation information to aid in avoiding 
interactions with marine species.
    <bullet> Navy lookouts will undertake extensive training in order 
to qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    <bullet> Lookout training will include on-the-job instruction under 
the supervision of a qualified, experienced lookout. Following 
successful completion of this supervised training period, lookouts will 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). Personnel being trained as 
lookouts can be counted among those listed below as long as supervisors 
monitor their progress and performance.
    <bullet> Lookouts will be trained in the most effective means to 
ensure quick and effective communication within the command structure 
in order to facilitate implementation of protective measures if marine 
species are spotted.

Operating Procedures and Collision Avoidance (for All Training Types)

    <bullet> Prior to major exercises, a Letter of Instruction, 
Mitigation Measures Message or Environmental Annex to the Operational 
Order will be issued to further disseminate the personnel training 
requirement and general marine species protective measures.
    <bullet> COs will make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    <bullet> While underway, surface vessels will have at least two 
lookouts with binoculars; surfaced submarines will have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts will watch for 
and report to the OOD the presence of marine mammals.
    <bullet> On surface vessels equipped with a multi-function active 
sensor, pedestal mounted ``Big Eye'' (20x110) binoculars will be 
properly installed and in good working order to assist in the detection 
of marine mammals in the vicinity of the vessel.
    <bullet> Personnel on lookout will employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    <bullet> After sunset and prior to sunrise, lookouts will employ 
Night Lookouts Techniques in accordance with the Lookout Training 
Handbook. (NAVEDTRA 12968-D).
    <bullet> While in transit, naval vessels will be alert at all 
times, use extreme caution, and proceed at a ``safe speed'' so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    <bullet> When whales have been sighted in the area, Navy vessels 
will increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and would be dictated by environmental and other 
conditions (e.g., safety, weather).
    <bullet> Navy aircraft participating in exercises at sea will 
conduct and maintain, when operationally feasible and safe, 
surveillance for marine species of concern as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties. Marine mammal detections will be 
immediately reported to assigned Aircraft Control Unit for further 
dissemination to ships in the vicinity of the marine species as 
appropriate where it is reasonable to conclude that the course of the 
ship will likely result in a closing of the distance to the detected 
marine mammal.

Measures for MFAS Operations

Personnel Training (for MFAS Operations)

    <bullet> All lookouts onboard platforms involved in ASW training 
events will review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.

[[Page 33864]]

    <bullet> All COs, XOs, and officers standing watch on the bridge 
will have reviewed the Marine Species Awareness Training material prior 
to a training event employing the use of MFAS/HFAS.
    <bullet> Navy lookouts will undertake extensive training in order 
to qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    <bullet> Lookout training will include on-the-job instruction under 
the supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts will 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    <bullet> Lookouts will be trained in the most effective means to 
ensure quick and effective communication within the command structure 
in order to facilitate implementation of mitigation measures if marine 
species are spotted.

Lookout and Watchstander Responsibilities (for MFAS Operations)

    <bullet> On the bridge of surface ships, there will always be at 
least three people on watch whose duties include observing the water 
surface around the vessel.
    <bullet> All surface ships participating in ASW training events 
will, in addition to the three personnel on watch noted previously, 
have at all times during the exercise at least two additional personnel 
on watch as marine mammal lookouts.
    <bullet> Personnel on lookout and officers on watch on the bridge 
will have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    <bullet> Personnel on lookout will be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, 
discoloration) in the water may be indicative of a threat to the vessel 
and its crew or indicative of a marine species that may need to be 
avoided as warranted.

Operating Procedures (for MFAS Operations)

    <bullet> All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) will monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    <bullet> During MFAS operations, personnel will utilize all 
available sensor and optical systems (such as night vision goggles) to 
aid in the detection of marine mammals.
    <bullet> Navy aircraft participating in exercises at sea will 
conduct and maintain, when operationally feasible and safe, 
surveillance for marine species of concern as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties.
    <bullet> Aircraft with deployed sonobuoys will use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    <bullet> Marine mammal detections will be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    <bullet> Safety Zones--When marine mammals are detected by any 
means (aircraft, shipboard lookout, or acoustically) within or closing 
to inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or 
submarine will limit active transmission levels to at least 6 decibels 
(dB) below normal operating levels (a 6-dB reduction equals a 75-
percent reduction in power).
    [dec221] Ships and submarines will continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    [dec221] Should a marine mammal be detected within or closing to 
inside 500 yds (457 m) of the sonar dome, active sonar transmissions 
will be limited to at least 10 dB below the equipment's normal 
operating level. (A 10-dB reduction equates to a 90-percent power 
reduction from normal operating levels.) Ships and submarines will 
continue to limit maximum ping levels by this 10-dB factor until the 
animal has been seen to leave the area, has not been detected for 30 
minutes, or the vessel has transited more than 2,000 yds (1829 m) 
beyond the location of the last detection.
    [dec221] Should the marine mammal be detected within or closing to 
inside 200 yds (183 m) of the sonar dome, active sonar transmissions 
will cease. Active sonar will not resume until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    [dec221] Special conditions applicable for dolphin and porpoise 
only: If, after conducting an initial maneuver to avoid close quarters 
with dolphin or porpoise, the OOD concludes that dolphin or porpoise 
are deliberately closing to ride the vessel's bow wave, no further 
mitigation actions would be necessary while the dolphin or porpoise 
continue to exhibit bow wave riding behavior.
    [dec221] If the need for power-down should arise as detailed in 
``Safety Zones'' above, the Navy shall follow the requirements as 
though they were operating at 235 dB--the normal operating level (i.e., 
the first power-down will be to 229 dB, regardless of at what level 
above 235 dB active sonar was being operated).
    <bullet> Prior to start up or restart of active sonar, operators 
will check that the Safety Zone radius around the sound source is clear 
of marine mammals.
    <bullet> Active sonar levels (generally)--Navy will operate sonar 
at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    <bullet> Submarine sonar operators will review detection indicators 
of close-aboard marine mammals prior to the commencement of ASW 
training events involving MFAS.

Measures for Underwater Detonations

Surface-to-Surface Gunnery (Non-Explosive Rounds)

    <bullet> A 200-yd (183 m) radius buffer zone will be established 
around the intended target.
    <bullet> From the intended firing position, trained lookouts will 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Due to the distance between 
the firing position and the buffer zone, lookouts are only expected to 
visually detect breaching whales, whale blows, and large pods of 
dolphins and porpoises.
    <bullet> If applicable, target towing vessels will maintain a 
lookout. If a marine mammal is sighted in the vicinity of the exercise, 
the tow vessel will immediately notify the firing vessel in order to 
secure gunnery firing until the area is clear.
    <bullet> The exercise will be conducted only when the buffer zone 
is visible and marine mammals are not detected

[[Page 33865]]

within the target area and the buffer zone.

Surface-to-Air Gunnery (Explosive and Non-Explosive Rounds)

    <bullet> Vessels will orient the geometry of gunnery exercises in 
order to prevent debris from falling in the area of sighted marine 
mammals, algal mats, and floating kelp.
    <bullet> Vessels will expedite the recovery of any parachute 
deploying aerial targets to reduce the potential for entanglement of 
marine mammals.
    <bullet> Target towing aircraft shall maintain a lookout. If a 
marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft will immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.

Air-to-Surface At-Sea Bombing Exercises (Explosive and Non-Explosive)

    <bullet> If surface vessels are involved, trained lookouts will 
survey for floating kelp, which may be inhabited by marine mammals. 
Ordnance shall not be targeted to impact within 1,000 yds (914 m) of 
known or observed floating kelp or marine mammals.
    <bullet> A 1,000 yd (914 m) radius buffer zone will be established 
around the intended target.
    <bullet> Aircraft will visually survey the target and buffer zone 
for marine mammals prior to and during the exercise. The survey of the 
impact area will be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: Aircraft must be able to actually 
see ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    <bullet> The exercise will be conducted only if marine mammals are 
not visible within the buffer zone.

Air-to-Surface Missile Exercises (Explosive and Non-Explosive)

    <bullet> Aircraft will visually survey the target area for marine 
mammals. Visual inspection of the target area will be made by flying at 
1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.

Underwater Detonations (Up to 2.5-lb Charges)

    Exclusion Zones--All Mine Warfare and Mine Countermeasures 
Operations involving the use of explosive charges must include 
exclusion zones for marine mammals to prevent physical and/or acoustic 
effects to those species. These exclusion zones shall extend in a 700-
yard arc (640 yd) radius around the detonation site.
    Pre-Exercise Surveys--For Demolition and Ship Mine Countermeasures 
Operations, pre-exercise surveys shall be conducted within 30 minutes 
prior to the commencement of the scheduled explosive event. The survey 
may be conducted from the surface, by divers, and/or from the air, and 
personnel shall be alert to the presence of any marine mammal. Should 
such an animal be present within the survey area, the explosive event 
shall not be started until the animal voluntarily leaves the area. The 
Navy will ensure the area is clear of marine mammals for a full 30 
minutes prior to initiating the explosive event. Personnel will record 
any marine mammal observations during the exercise as well as measures 
taken if species are detected within the exclusion zone.
    Post-Exercise Surveys--Surveys within the same radius shall also be 
conducted within 30 minutes after the completion of the explosive 
event.
    Reporting--If there is evidence that a marine mammal may have been 
stranded, injured or killed by the action, Navy training activities 
will be suspended immediately and the situation reported immediately by 
the participating unit to the Officer in Charge of the Exercise (OCE), 
who will follow Navy procedures for reporting the incident to 
Commander, Pacific Fleet, Commander, Navy Region Southwest, 
Environmental Director, and the chain-of-command. The situation will 
also be reported to NMFS immediately or as soon as clearance procedures 
allow.

Sinking Exercise

    The selection of sites suitable for SINKEXs involves a balance of 
operational suitability, requirements established under the Marine 
Protection, Research and Sanctuaries Act (MPRSA) permit granted to the 
Navy (40 CFR 229.2), and the identification of areas with a low 
likelihood of encountering ESA-listed species. To meet operational 
suitability criteria, the locations of SINKEXs must be within a 
reasonable distance of the target vessels' originating location. The 
locations should also be close to active military bases to allow 
participating assets access to shore facilities. For safety purposes, 
these locations should also be in areas that are not generally used by 
non-military air or watercraft. The MPRSA permit requires vessels to be 
sunk in waters which are at least 6000 ft (1829 m) deep and at least 50 
nm from land. In general, most listed species prefer areas with strong 
bathymetric gradients and oceanographic fronts for significant 
biological activity such as feeding and reproduction. Typical locations 
include the continental shelf and shelf-edge.
    The Navy has developed range clearance procedures to maximize the 
probability of sighting any ships or marine mammal in the vicinity of 
an exercise, which are as follows:
    <bullet> All weapons firing would be conducted during the period 1 
hour after official sunrise to 30 minutes before official sunset.
    <bullet> Extensive range clearance activities would be conducted in 
the hours prior to commencement of the exercise, ensuring that no 
shipping is located within the hazard range of the longest-range weapon 
being fired for that event.
    <bullet> An exclusion zone with a radius of 1.0 nm (1.9 km) would 
be established around each target. This exclusion zone is based on 
calculations using a 990-lb (450-kg) H6 net explosive weight high 
explosive source detonated 5 ft (1.5 m) below the surface of the water, 
which yields a distance of 0.85 nm (1.57 km) (cold season) and 0.89 nm 
(1.65 km) (warm season) beyond which the received level is below the 
182 decibels (dB) re: 1 micropascal squared-seconds ([mu]Pa2-s) 
threshold established for the WINSTON S. CHURCHILL (DDG 81) shock 
trials (U.S. Navy, 2001). An additional buffer of 0.5 nm (0.9 km) would 
be added to account for errors, target drift, and animal movements. 
Additionally, a safety zone, which would extend beyond the buffer zone 
by an additional 0.5 nm (0.9 km), would be surveyed. Together, the 
zones extend out 2 nm (3.7 km) from the target.
    <bullet> A series of surveillance overflights shall be conducted 
prior to the event to ensure that no marine mammals are present in the 
exclusion zone. Survey protocol will be as follows:
    <bullet> Overflights within the exclusion zone would be conducted 
in a manner that optimizes the surface area of the water observed. This 
may be accomplished through the use of the Navy's Search and Rescue 
Tactical Aid, which provides the best search altitude, ground speed, 
and track spacing for the discovery of small, possibly dark objects in 
the water based on the environmental conditions of the day. These 
environmental conditions include the angle of sun inclination, amount 
of daylight, cloud cover, visibility, and sea state.
    <bullet> All visual surveillance activities would be conducted by 
Navy personnel

[[Page 33866]]

trained in visual surveillance. At least one member of the mitigation 
team would have completed the Navy's marine mammal training program for 
lookouts.
    <bullet> In addition to the overflights, the exclusion zone would 
be monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring would be maintained throughout the 
exercise. Potential assets include sonobuoys, which can be utilized to 
detect any vocalizing marine mammals (particularly sperm whales) in the 
vicinity of the exercise. The sonobuoys would be re-seeded as necessary 
throughout the exercise. Additionally, passive sonar onboard submarines 
may be utilized to detect any vocalizing marine mammals in the area. 
The OCE would be informed of any aural detection of marine mammals and 
would include this information in the determination of when it is safe 
to commence the exercise.
    <bullet> On each day of the exercise, aerial surveillance of the 
exclusion and safety zones would commence 2 hours prior to the first 
firing.
    <bullet> The results of all visual, aerial, and acoustic searches 
would be reported immediately to the OCE. No weapons launches or firing 
would commence until the OCE declares the safety and exclusion zones 
free of marine mammals and threatened and endangered species.
    <bullet> If a marine mammal observed within the exclusion zone is 
diving, firing would be delayed until the animal is re-sighted outside 
the exclusion zone, or 30 minutes have elapsed, whichever occurs first. 
After 30 minutes, if the animal has not been re-sighted it would be 
assumed to have left the exclusion zone. The OCE would determine if the 
marine mammal is in danger of being adversely affected by commencement 
of the exercise.
    <bullet> During breaks in the exercise of 30 minutes or more, the 
exclusion zone would again be surveyed for any marine mammal. If a 
marine mammal is sighted within the exclusion zone, the OCE would be 
notified, and the procedure described above would be followed.
    <bullet> Upon sinking of the vessel, a final surveillance of the 
exclusion zone would be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    <bullet> Aerial surveillance would be conducted using helicopters 
or other aircraft based on necessity and availability. The Navy has 
several types of aircraft capable of performing this task; however, not 
all types are available for every exercise. For each exercise, the 
available asset best suited for identifying objects on and near the 
surface of the ocean would be used. These aircraft would be capable of 
flying at the slow safe speeds necessary to enable viewing of marine 
vertebrates with unobstructed, or minimally obstructed, downward and 
outward visibility. The exclusion and safety zone surveys may be 
cancelled in the event that a mechanical problem, emergency search and 
rescue, or other similar and unexpected event preempts the use of one 
of the aircraft onsite for the exercise.
    <bullet> Every attempt would be made to conduct the exercise in sea 
states that are ideal for marine mammal sighting--Beaufort Sea State 3 
or less. In the event of a sea state of 4 or above, survey efforts 
would be increased within the zones. This would be accomplished through 
the use of an additional aircraft, if available, and conducting tight 
search patterns.
    <bullet> The exercise would not be conducted unless the exclusion 
zone could be adequately monitored visually. Should low cloud cover or 
surface visibility prevent adequate visual monitoring as described 
previously, the exercise would be delayed until conditions improved, 
and all of the above monitoring criteria could be met.
    <bullet> In the unlikely event that any marine mammal is observed 
to be harmed in the area, a detailed description of the animal would be 
taken, the location noted, and if possible, photos taken. This 
information would be provided to NMFS via the Navy's regional 
environmental coordinator for purposes of identification (see the draft 
Stranding Plan for detail).
    <bullet> An after action report detailing the exercise's time line, 
the time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
would be submitted to NMFS.

Explosive Source Sonobuoys Used in EER/IEER (AN/SSQ-110A)

    <bullet> Crews will conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search should be 
conducted below 457 m (500 yd) at a slow speed, if operationally 
feasible and weather conditions permit. In dual aircraft operations, 
crews are allowed to conduct coordinated area clearances.
    <bullet> Crews shall conduct a minimum of 30 minutes of visual and 
aural monitoring of the search area prior to commanding the first post 
detonation. This 30-minute observation period may include pattern 
deployment time.
    <bullet> For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of 
observed marine mammal activity, deploy the receiver ONLY and monitor 
while conducting a visual search. When marine mammals are no longer 
detected within 914 m (1,000 yd) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the 
receiver.
    <bullet> When operationally feasible, crews will conduct continuous 
visual and aural monitoring of marine mammal activity. This is to 
include monitoring of own-aircraft sensors from first sensor placement 
to checking off station and out of RF range of these sensors.
    <bullet> Aural Detection--If the presence of marine mammals is 
detected aurally, then that should cue the aircrew to increase the 
diligence of their visual surveillance. Subsequently, if no marine 
mammals are visually detected, then the crew may continue multi-static 
active search.
    <bullet> Visual Detection--If marine mammals are visually detected 
within 914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) 
intended for use, then that payload shall not be detonated. Aircrews 
may utilize this post once the marine mammals have not been re-sighted 
for 30 minutes, or are observed to have moved outside the 914 m (1,000 
yd) safety buffer, whichever occurs first. Aircrews may shift their 
multi-static active search to another post, where marine mammals are 
outside the 914 m (1,000 yd) safety buffer.
    <bullet> Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using 
the ``Scuttle'' command when two payloads remain at a given post. 
Aircrews will ensure that a 914 m (1,000 yd) safety buffer, visually 
clear of marine mammals, is maintained around each post as is done 
during active search operations.
    <bullet> Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary 
(detonation occurs by timer approximately 6 hours after water entry) or 
tertiary (detonation occurs by salt water soluble plug approximately 12 
hours after water entry) method.

[[Page 33867]]

    <bullet> Aircrews shall ensure all payloads are accounted for. 
Explosive source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall 
be reported as unexploded ordnance via voice communications while 
airborne, then upon landing via naval message.
    <bullet> Mammal monitoring shall continue until out of own-aircraft 
sensor range.

Mitigation Conclusions

    NMFS has carefully evaluated the Navy's proposed mitigation 
measures and considered a broad range of other measures in the context 
of ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
    <bullet> The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals.
    <bullet> The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned.
    <bullet> The practicability of the measure for applicant 
implementation, including consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity.
    In some cases, additional mitigation measures are required beyond 
those that the applicant proposes. Any mitigation measure(s) prescribed 
by NMFS should be able to accomplish, have a reasonable likelihood of 
accomplishing (based on current science), or contribute to the 
accomplishment of one or more of the general goals listed below:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of MFAS/HFAS, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing harassment takes only).
    (c) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of MFAS/HFAS, underwater detonations, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to a, above, or to reducing harassment takes only).
    (d) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of MFAS/HFAS, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing the severity of harassment takes 
only).
    (e) Avoidance or minimization of 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.).
    Based on our evaluation of the Navy's proposed measures, as well as 
other measures considered by NMFS or recommended by the public, NMFS 
has determined preliminarily that the Navy's proposed mitigation 
measures (especially when the Adaptive Management (see Adaptive 
Management below) component is taken into consideration) are adequate 
means of effecting the least practicable adverse impacts on marine 
mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, while also considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity. Further detail is included below.
    The proposed rule comment period will afford the public an 
opportunity to submit recommendations, views and/or concerns regarding 
this action and the proposed mitigation measures. While NMFS has 
determined preliminarily that the Navy's proposed mitigation measures 
will effect the least practicable adverse impact on the affected 
species or stocks and their habitat, NMFS will consider all public 
comments to help inform our final decision. Consequently, the proposed 
mitigation measures may be refined, modified, removed, or added to 
prior to the issuance of the final rule based on public comments 
received, and where appropriate, further analysis of any additional 
mitigation measures.
    NMFS believes that the range clearance procedures and shutdown/
safety zone/exclusion zone measures the Navy has proposed will enable 
the Navy to avoid injuring marine mammals and will enable them to 
minimize the numbers of marine mammals exposed to levels associated 
with TTS for the following reasons:

MFAS/HFAS

    The Navy's standard protective measures indicate that they will 
ensure powerdown of MFAS/HFAS by 6-dB when a marine mammal is detected 
within 1,000 yd (914 m), powerdown of 4 more dB (or 10-dB total) when a 
marine mammal is detected within 500 yd (457 m), and will cease MFAS/
HFAS transmissions when a marine mammal is detected within 200 yd (183 
m).
    PTS/Injury--NMFS believes that the proposed mitigation measures 
will allow the Navy to avoid exposing marine mammals to received levels 
of MFAS/HFAS sound that would result in injury for the following 
reasons:
    <bullet> The estimated distance from the most powerful source at 
which cetaceans and all pinnipeds except harbor seals would receive 
levels at or above the threshold for PTS/injury/Level A Harassment is 
approximately 10 m (10.9 yd). The PTS threshold for harbor seals is 
lower, and the associated distance in which a harbor seal would 
experience PTS is approximately 50 m.
    <bullet> NMFS believes that the probability that a marine mammal 
would approach within the above distances of the sonar dome (to the 
sides or below) without being seen by the watchstanders (who would then 
activate a shutdown if the animal was within 200 yd (183 m)) is very 
low, especially considering that animals would likely avoid approaching 
a source transmitting at that level at that distance.
    <bullet> The model predicted that one harbor seal would be exposed 
to levels associated with injury, however, the model does not consider 
the mitigation or likely avoidance behaviors and NMFS believes that 
injury is unlikely when those factors are considered.
    TTS--NMFS believes that the proposed mitigation measures will allow 
the Navy to minimize exposure of marine mammals to received levels of 
MFAS/HFAS sound associated with TTS for the following reasons:
    <bullet> The estimated maximum distance from the most powerful 
source at which cetaceans and all pinnipeds except harbor seals would 
receive levels at or above the threshold for TTS is approximately 140 m 
from the source in most operating environments (except for harbor seals 
for which the distance is approximately 400 m).
    <bullet> Based on the size of the animals, average group size, 
behavior, and average dive time, NMFS believes that the probability 
that Navy watchstanders will visually detect mysticetes or sperm 
whales, dolphins, social pelagic species

[[Page 33868]]

(pilot whales, melon-headed whales, etc.), and sea lions at some point 
within the 1,000 yd (914 km) safety zone before they are exposed to the 
TTS threshold levels is high, which means that the Navy would often be 
able to shutdown or powerdown to avoid exposing these species to sound 
levels associated with TTS.
    <bullet> However, seals and more cryptic (animals that are 
difficult to detect and observe), deep-diving cetaceans (beaked whales 
and Kogia spp.) are less likely to be visually detected and could 
potentially be exposed to levels of MFAS/HFAS expected to cause TTS. 
Animals at depth in one location would not be expected to be 
continuously exposed to repeated sonar signals given the typical 5-10+ 
knot speed of Navy surface ships during ASW events. During a typical 
one-hour subsurface dive by a beaked whale, the ship will have moved 
over 5 to 10 nm from the original location. Additionally, the Navy's 
model does not predict TTS exposures of beaked whales or Kogia, 
although it does predict TTS exposure of 245 harbor seals.
    <bullet> Additionally, the Navy's bow-riding mitigation exception 
for dolphins may sometimes result in dolphins being exposed to levels 
of MFAS/HFAS likely to result in TTS. However, there are combinations 
of factors that reduce the acoustic energy received by dolphins 
approaching ships to ride in bow waves. Dolphins riding a ship's bow 
wave are outside of the main beam of the MFAS vertical beam pattern. 
Source levels drop quickly outside of the main beam. Sidelobes of the 
radiate beam pattern that point to the surface are significantly lower 
in power. Together with spherical spreading losses, received levels in 
the ship's bow wave can be more than 42 dB less than typical source 
level (i.e., 235 dB - 42 dB = 193 dB SPL). Finally, bow wave riding 
dolphins are frequently in and out of a bubble layer generated by the 
breaking bow waves. This bubble layer is an excellent scatterer of 
acoustic energy and can further reduce received energy.

Underwater Explosives

    The Navy utilizes exclusion zones (wherein explosive detonation 
will not begin/continue if animals are within the zone) for explosive 
exercises. Table 3 identifies the various explosives, the estimated 
distance at which animals will receive levels associated with take (see 
Acoustic Take Criteria Section), and the exclusion zone associated with 
the explosive types.
    Mortality and Injury--NMFS believes that the mitigation measures 
will allow the Navy to avoid exposing marine mammals to underwater 
detonations that would result in injury or mortality for the following 
reasons:
    <bullet> Surveillance for large charges (which includes aerial and 
passive acoustic detection methods, when available, to ensure 
clearance) begins two hours before the exercise and extends to 2 nm 
(3,704 m) from the source. Surveillance for all charges extends out 2-
12 times the farthest distance from the source at which injury would be 
anticipated to occur (see Table 3).
    <bullet> Animals would need to be less than 120-694 m (131-759 yd) 
(large explosives) or 21-112 m (23-123 yd) (smaller charges) from the 
source to be injured.
    <bullet> Unlike for active sonar, an animal would need to be 
present at the exact moment of the explosion(s) (except for the short 
series of gunfire example in GUNEX) to be taken.
    <bullet> The model predicted that 14 animals would be exposed to 
levels associated with injury, and 2 animals would be exposed to levels 
associated with death (though for the reasons explained above, NMFS 
does not believe they will be exposed to those levels).
    <bullet> When the implementation of the exclusion zones (i.e., the 
fact that the Navy will not start a detonation or will not continue to 
detonate explosives if an animal is detected within the exclusion zone) 
is considered in combination with the factors described in the above 
bullets, NMFS believes that the Navy's mitigation will prevent injury 
and mortality to marine mammals from explosives.
    TTS--NMFS believes that the proposed mitigation measures will allow 
the Navy to minimize the exposure of marine mammals to underwater 
detonations that would result in TTS for the following reasons:
    <bullet> About 200 animals annually were predicted to be exposed to 
explosive levels that would result in TTS. For the reasons explained 
above, NMFS believes that most modeled TTS takes can be avoided, 
especially dolphins, mysticetes and sperm whales, and social pelagic 
species.
    <bullet> However, pinnipeds and more cryptic, deep-diving species 
(beaked whales and Kogia spp.) are less likely to be visually detected 
and could potentially be exposed to explosive levels expected to cause 
TTS. The model estimated that one beaked whale, zero Kogia, 44 northern 
fur seal, 29 northern elephant seal, 2 harbor seal, 1 California sea 
lion, and 3 Steller sea lions would be exposed to TTS levels.
    <bullet> Additionally, for two of the exercise types (SINKEX and 
BOMBEX), the distance at which an animal would be expected to receive 
sound or pressure levels associated with TTS (182 dB SEL or 23 psi) is 
sometimes larger than the exclusion zone, which means that for those 
two exercise types, some individuals will likely be exposed to levels 
associated with TTS outside of the exclusion zone.

Research

    The Navy provides a significant amount of funding and support to 
marine research. In the past five years the agency funded over $100 
million ($26 million in FY08 alone) to universities, research 
institutions, Federal laboratories, private companies, and independent 
researchers around the world to study marine mammals. The U.S. Navy 
sponsors 70% of all U.S. research concerning the effects of human-
generated sound on marine mammals and 50% of such research conducted 
worldwide. Major topics of Navy-supported research include the 
following:
    <bullet> Better understanding of marine species distribution and 
important habitat areas,
    <bullet> Developing methods to detect and monitor marine species 
before and during training,
    <bullet> Understanding the effects of sound on marine mammals, sea 
turtles, fish, and birds, and
    <bullet> Developing tools to model and estimate potential effects 
of sound.
    This research is directly applicable to Fleet training activities, 
particularly with respect to the investigations of the potential 
effects of underwater noise sources on marine mammals and other 
protected species. Proposed training activities employ active sonar and 
underwater explosives, which introduce sound into the marine 
environment.
    The Marine Life Sciences Division of the Office of Naval Research 
currently coordinates six programs that examine the marine environment 
and are devoted solely to studying the effects of noise and/or the 
implementation of technology tools that will assist the Navy in 
studying and tracking marine mammals. The six programs are as follows:
    <bullet> Environmental Consequences of Underwater Sound,
    <bullet> Non-Auditory Biological Effects of Sound on Marine 
Mammals,
    <bullet> Effects of Sound on the Marine Environment,
    <bullet> Sensors and Models for Marine Environmental Monitoring,
    <bullet> Effects of Sound on Hearing of Marine Animals, and

[[Page 33869]]

    <bullet> Passive Acoustic Detection, Classification, and Tracking 
of Marine Mammals.
    The Navy has also developed the technical reports referenced within 
this document, which include the Marine Resource Assessments and the 
Navy OPAREA Density Estimates (NODE) reports. Furthermore, research 
cruises by the National Marine Fisheries Service (NMFS) and by academic 
institutions have received funding from the U.S. Navy.
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund ongoing marine mammal 
research, and is planning to coordinate long term monitoring/studies of 
marine mammals on various established ranges and operating areas. The 
Navy will continue to research and contribute to university/external 
research to improve the state of the science regarding marine species 
biology and acoustic effects. These efforts include mitigation and 
monitoring programs; data sharing with NMFS and via the literature for 
research and development efforts; and future research as described 
previously.

Memorandum of Agreement (MOA) for Navy Assistance With Stranding 
Investigations

    The Navy and NMFS are currently developing a nationwide MOA (or 
other mechanism consistent with Federal fiscal law requirements (and 
all other applicable laws)), that will establish a framework whereby 
the Navy can (and NMFS will provide examples of how best to) assist 
NMFS with stranding investigations in certain circumstances.

Long-Term Prospective Study

    Apart from this proposed rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe for and record the types of pathologies and 
diseases and investigate the relationship with potential causal factors 
(e.g., active sonar, seismic, weather). The study will not be a true 
``cohort'' study, because we will be unable to quantify or estimate 
specific active sonar or other sound exposures for individual animals 
that strand. However, a cross-sectional or correlational analyses, a 
method of descriptive rather than analytical epidemiology, can be 
conducted to compare population characteristics, e.g., frequency of 
strandings and types of specific pathologies between general periods of 
various anthropogenic activities and non-activities within a prescribed 
geographic space. In the long-term study, we will more fully and 
consistently collect and analyze data on the demographics of strandings 
in specific locations and consider anthropogenic activities and 
physical, chemical, and biological environmental parameters. This 
approach in conjunction with true cohort studies (tagging animals, 
measuring received sounds, and evaluating behavior or injuries) in the 
presence of activities and non-activities will provide critical 
information needed to further define the impacts of MTEs and other 
anthropogenic and non-anthropogenic stressors. In coordination with the 
Navy and other Federal and non-Federal partners, the comparative study 
will be designed and conducted for specific sites during intervals of 
the presence of anthropogenic activities such as active sonar 
transmission or other sound exposures and absence to evaluate 
demographics of morbidity and mortality, lesions found, and cause of 
death or stranding. Additional data that will be collected and analyzed 
in an effort to control potential confounding factors include variables 
such as average sea temperature (or just season), meteorological or 
other environmental variables (e.g., seismic activity), fishing 
activities, etc. All efforts will be made to include appropriate 
controls (i.e., no active sonar or no seismic); environmental variables 
may complicate the interpretation of ``control'' measurements. The Navy 
and NMFS along with other partners are evaluating mechanisms for 
funding this study.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 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 our understanding of how many marine mammals are 
likely to be exposed to levels of MFAS/HFAS (or explosives or other 
stimuli) that we associate with specific adverse effects, such as 
behavioral harassment, TTS, or PTS.
    (b) An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to MFAS/HFAS (at 
specific received levels), explosives, or other stimuli expected to 
result in take.
    (c) An increase in our understanding of how anticipated takes of 
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).
    (d) An increased knowledge of the affected species.
    (e) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    (f) A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.
    (g) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to better achieve the 
above goals.

Proposed Monitoring Plan for the NWTRC

    The Navy has submitted a draft Monitoring Plan for the NWTRC which 
may be viewed at NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS and the Navy have worked together on 
the development of this plan in the months preceding the publication of 
this proposed rule; however, we are still refining the plan and 
anticipate that it will contain more details by the time NMFS issues 
the final rule. Additionally, the plan may be modified or supplemented 
based on comments or new information received from the public during 
the public comment period. A summary of the primary components of the 
plan follows.

[[Page 33870]]

    The draft Monitoring Plan for NWTRC has been designed as a 
collection of focused ``studies'' (described fully in the NWTRC draft 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (a) Are marine mammals exposed to MFAS/HFAS, especially at levels 
associated with adverse effects (i.e., based on NMFS' criteria for 
behavioral harassment, TTS, or PTS)? If so, at what levels are they 
exposed?
    (b) If marine mammals are exposed to MFAS/HFAS in the NWTRC Range 
Complex, do they redistribute geographically as a result of continued 
exposure? If so, how long does the redistribution last?
    (c) If marine mammals are exposed to MFAS/HFAS, what are their 
behavioral responses to various levels?
    (d) What are the behavioral responses of marine mammals and that 
are exposed to explosives at specific levels?
    (e) Is the Navy's suite of mitigation measures for MFAS/HFAS (e.g., 
measures agreed to by the Navy through permitting) effective at 
preventing TTS, injury, and mortality of marine mammals?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists that are experts in their field. 
They will use a combination of the following methods to collect data:
    <bullet> Contracted vessel and aerial surveys.
    <bullet> Passive acoustics.
    <bullet> Marine mammal observers on Navy ships.
    <bullet> Tagging (satellite and acoustic).
    In the three proposed study designs (all of which cover multiple 
years), the above methods will be used separately or in combination to 
monitor marine mammals in different combinations before, during, and 
after training activities utilizing MFAS/HFAS.
    This monitoring plan has been designed to gather data on all 
species of marine mammals that are observed in the NWTRC, however, 
where appropriate priority will be given to beaked whales, ESA-listed 
species, killer whales, and harbor porpoises. The Plan recognizes that 
deep-diving and cryptic species of marine mammals such as beaked whales 
have a low probability of detection (Barlow and Gisiner, 2006). 
Therefore, methods will be utilized to attempt to address this issue 
(e.g., passive acoustic monitoring).
    In addition to the Monitoring Plan for NWTRC, by the end of 2009, 
the Navy will have completed an Integrated Comprehensive Monitoring 
Program (ICMP) Plan. The ICMP will provide the overarching structure 
and coordination that will, over time, compile data from both range 
specific monitoring plans (such as AFAST, the Hawaii Range Complex, and 
the Southern California Range Complex) as well as Navy funded research 
and development (R&D) studies. The primary objectives of the ICMP are 
to:
    <bullet> Monitor Navy training events, particularly those involving 
MFAS and underwater detonations, for compliance with the terms and 
conditions of ESA Section 7 consultations or MMPA authorizations;
    <bullet> Collect data to support estimating the number of 
individuals exposed to sound levels above current acoustic thresholds;
    <bullet> Assess the efficacy of the Navy's current marine species 
mitigation;
    <bullet> Add to the knowledge base on potential behavioral and 
physiological effects to marine species from mid-frequency active sonar 
and underwater detonations; and,
    <bullet> Assess the practicality and effectiveness of a number of 
mitigation tools and techniques (some not yet in use).
    More information about the ICMP may be found in the draft 
Monitoring Plan for NWTRC.

Monitoring Workshop

    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the NWTRC rule as well as monitoring 
results from other Navy rules and LOAs (e.g., the Southern California 
Range Complex (SOCAL), Hawaii Range Complex (HRC), etc.). The 
Monitoring Workshop participants would provide their individual 
recommendations to the Navy and NMFS on the monitoring plan(s) after 
also considering the current science (including Navy research and 
development) and working within the framework of available resources 
and feasibility of implementation. NMFS and the Navy would then analyze 
the input from the Monitoring Workshop participants and determine the 
best way forward from a national perspective. Subsequent to the 
Monitoring Workshop, modifications would be applied to monitoring plans 
as appropriate.

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy training exercises in the NWTRC will contain an 
adaptive management component. Our understanding of the effects of 
MFAS/HFAS and explosives on marine mammals is still in its relative 
infancy, and yet the science in this field is evolving fairly quickly. 
These circumstances make the inclusion of an adaptive management 
component both valuable and necessary within the context of 5-year 
regulations for activities that have been associated with marine mammal 
mortality in certain circumstances and locations (though not the NWTRC 
in the Navy's over 60 years of use of the area for testing and 
training). The use of adaptive management will allow NMFS to consider 
new data from different sources to determine (in coordination with the 
Navy) on an annual basis if mitigation or monitoring measures should be 
modified or added (or deleted) if new data suggests that such 
modifications are appropriate (or are not appropriate) for subsequent 
annual LOAs.
    Following are some of the possible sources of applicable data:
    [squarf] Results from the Navy's monitoring from the previous year 
(either from NWTRC or other locations).
    [squarf] Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
    [squarf] Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
    [squarf] Results from specific stranding investigations (either 
from NWTRC or other locations, and involving coincident MFAS/HFAS of 
explosives training or not involving coincident use).
    [squarf] Results from the Long Term Prospective Study described 
above.
    [squarf] Results from general marine mammal and sound research 
(funded by the Navy (described above) or otherwise).
    [squarf] Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this proposed rule and if the measures are practicable. NMFS would 
also coordinate with the Navy to modify or

[[Page 33871]]

add to (or delete) the existing monitoring requirements if the new data 
suggest that the addition of (or deletion of) a particular measure 
would more effectively accomplish the goals of monitoring laid out in 
this proposed rule. The reporting requirements associated with this 
proposed rule are designed to provide NMFS with monitoring data from 
the previous year to allow NMFS to consider the data and issue annual 
LOAs. NMFS and the Navy will meet annually, prior to LOA issuance, to 
discuss the monitoring reports, Navy R&D developments, and current 
science and whether mitigation or monitoring modifications are 
appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. Some of the reporting 
requirements are still in development and the final rule may contain 
additional details not contained in the proposed rule. Additionally, 
proposed reporting requirements may be modified, removed, or added 
based on information or comments received during the public comment 
period. Currently, there are several different reporting requirements 
pursuant to these proposed regulations:

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy will provide 
NMFS with species or description of the animal(s), the condition of the 
animal(s) (including carcass condition if the animal is dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available).
    In the event that an injured, stranded, or dead marine mammal is 
found by the Navy that is not in the vicinity of, or during or shortly 
after MFAS, HFAS, or underwater explosive detonations, the Navy will 
report the same information as listed above as soon as operationally 
feasible and clearance procedures allow.

General Notification of a Ship Strike

    In the event of a ship strike by any Navy vessel, at any time or 
place, the Navy shall do the following:
    <bullet> Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown).
    <bullet> Report to NMFS as soon as operationally feasible the size 
and length of animal, an estimate of the injury status (ex., dead, 
injured but alive, injured and moving, unknown, etc.), vessel class/
type and operational status.
    <bullet> Report to NMFS the vessel length, speed, and heading as 
soon as feasible.
    <bullet> Provide NMFS a photo or video, if equipment is available.

Event Communication Plan

    The Navy shall develop a communication plan that will include all 
of the communication protocols (phone trees, etc.) and associated 
contact information required for NMFS and the Navy to carry out the 
necessary expeditious communication required in the event of a 
stranding or ship strike, including as described in the proposed 
notification measures above.

Annual NWTRC Report

    The Navy will submit an Annual NWTRC Report on October 1 of every 
year (covering data gathered through August 1). This report shall 
contain the subsections and information indicated below.

ASW Summary

    This section shall include the following information as summarized 
from non-major training exercises (unit-level exercises, such as 
TRACKEXs and MIW):
    (a) Total Hours--Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.))
    (b) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of 
annually reporting non-major training (i.e., ULT) utilizing hull-
mounted sonar. The report shall present an annual (and seasonal, where 
practicable) depiction of non-major training exercises geographically 
across NWTRC. The Navy shall include (in the NWTRC annual report) a 
brief annual progress update on the status of the development of an 
effective and unclassified method to report this information until an 
agreed-upon (with NMFS) method has been developed and implemented.

Sinking Exercises (SINKEXs)

    This section shall include the following information for each 
SINKEX completed that year:
    (a) Exercise info:
    (i) Location.
    (ii) Date and time exercise began and ended.
    (iii) Total hours of observation by watchstanders before, during, 
and after exercise.
    (iv) Total number and types of rounds expended/explosives 
detonated.
    (v) Number and types of passive acoustic sources used in exercise.
    (vi) Total hours of passive acoustic search time.
    (vii) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (viii) Wave height in feet (high, low and average during exercise).
    (ix) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (b) Individual marine mammal observation during SINKEX (by Navy 
lookouts) info:
    (i) Location of sighting.
    (ii) Species (if not possible--indication of whale/dolphin/
pinniped).
    (iii) Number of individuals.
    (iv) Calves observed (y/n).
    (v) Initial detection sensor.
    (vi) Length of time observers maintained visual contact with marine 
mammal.
    (vii) Wave height.
    (viii) Visibility.
    (ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
    (x) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance: (1) 
The modeled injury threshold radius for the largest explosive used in 
that exercise type in that OPAREA (694 m for SINKEX in NWTRC); (2) the 
required exclusion zone (1 nm for SINKEX in NWTRC); (3) the required 
observation distance (if different than the exclusion zone (2 nm for 
SINKEX in NWTRC); and (4) greater than the required observed distance. 
For example, in this case, the observer would indicate if < m, from 694 
m-1 nm, from 1 nm-2 nm, and > 2 nm.
    (xi) Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not

[[Page 33872]]

swimming etc.), including speed and direction.
    (xii) Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long.
    (xiii) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.

Improved Extended Echo-Ranging System (IEER) Summary

    This section shall include an annual summary of the following IEER 
information:
    (a) Total number of IEER events conducted in NWTRC.
    (b) Total expended/detonated rounds (buoys).
    (c) Total number of self-scuttled IEER rounds.

Explosives Summary

    The Navy is in the process of improving the methods used to track 
explosive use to provide increased granularity. To the extent 
practicable, the Navy will provide the information described below for 
all of their explosive exercises. Until the Navy is able to report in 
full the information below, they will provide an annual update on the 
Navy's explosive tracking methods, including improvements from the 
previous year.
    (a) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in NWTRC.
    (b) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

NWTRC 5-Yr Comprehensive Report

    The Navy shall submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during ASW and explosive exercises for which annual reports are 
required (Annual NWTRC Exercise Reports and NWTRC Monitoring Plan 
Reports). This report will be submitted at the end of the fourth year 
of the rule (November 2013), covering activities that have occurred 
through June 1, 2013.

Comprehensive National ASW Report

    By June, 2014, the Navy shall submit a draft National Report that 
analyzes, compares, and summarizes the active sonar data gathered 
(through January 1, 2014) from the watchstanders and pursuant to the 
implementation of the Monitoring Plans for the Northwest Training Range 
Complex, the Southern California Range Complex, the Atlantic Fleet 
Active Sonar Training, the Hawaii Range Complex, the Marianas Islands 
Range Complex, and the Gulf of Alaska.

Estimated Take of Marine Mammals

    As mentioned previously, one of the main purposes of NMFS' effects 
assessments is to identify the permissible methods of taking, meaning: 
The nature of the take (e.g., resulting from anthropogenic noise vs. 
from ship strike, etc.); the regulatory level of take (i.e., mortality 
vs. Level A or Level B harassment) and the amount of take. In the 
Potential Effects of Exposure of Marine Mammal to MFAS/HFAS and 
Underwater Detonations section, NMFS identified the lethal responses, 
physical trauma, sensory impairment (permanent and temporary threshold 
shifts and acoustic masking), physiological responses (particular 
stress responses), and behavioral responses that could potentially 
result from exposure to MFAS/HFAS or underwater explosive detonations. 
In this section, we will relate the potential effects to marine mammals 
from MFAS/HFAS and underwater detonation of explosives to the MMPA 
statutory definitions of Level A and Level B Harassment and attempt to 
quantify the effects that might occur from the specific training 
activities that the Navy is proposing in the NWTRC.
    As mentioned previously, behavioral responses are context-
dependent, complex, and influenced to varying degrees by a number of 
factors other than just received level. For example, an animal may 
respond differently to a sound emanating from a ship that is moving 
towards the animal than it would to an identical received level coming 
from a vessel that is moving away, or to a ship traveling at a 
different speed or at a different distance from the animal. At greater 
distances, though, the nature of vessel movements could also 
potentially not have any effect on the animal's response to the sound. 
In any case, a full description of the suite of factors that elicited a 
behavioral response would sometimes include a mention of the vicinity, 
speed and movement of the vessel, or other factors. So, while sound 
sources and the received levels are the primary focus of the analysis 
and those that are laid out quantitatively in the regulatory text, it 
is with the understanding that other factors related to the training 
are sometimes contributing to the behavioral responses of marine 
mammals, although they cannot be quantified.

Definition of Harassment

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].

Level B Harassment

    Of the potential effects that were described in the Potential 
Effects of Exposure of Marine Mammal to MFAS/HFAS and Underwater 
Detonations Section, the following are the types of effects that fall 
into the Level B Harassment category:
    Behavioral Harassment--Behavioral disturbance that rises to the 
level described in the definition above, when resulting from exposures 
to MFAS/HFAS or underwater detonations (or another stressor), is 
considered Level B Harassment. Louder sounds (when other factors are 
not considered) are generally expected to elicit a stronger response. 
Some of the lower level physiological stress responses discussed in the 
Potential Effects of Exposure of Marine Mammal to MFAS/HFAS and 
Underwater Detonations Section: Stress Section will also likely co-
occur with the predicted harassments, although these responses are more 
difficult to detect and fewer data exist relating these responses to 
specific received levels of sound. When Level B Harassment is predicted 
based on estimated behavioral responses, those takes may have a stress-
related physiological component as well.
    In the effects section above, we described the Southall et al., 
(2007) severity scaling system and listed some examples of the three 
broad categories of behaviors: (0-3: Minor and/or brief behaviors); 4-6 
(Behaviors with higher potential to affect foraging, reproduction, or 
survival); 7-9 (Behaviors considered likely to affect the 
aforementioned vital rates). Generally speaking, MMPA Level B 
Harassment, as defined in this document, would include the behaviors 
described in the 7-9 category, and a subset, dependent on context and 
other considerations, of the behaviors described in the 4-6 categories.

[[Page 33873]]

Behavioral harassment would not typically include behaviors ranked 0-3 
in Southall et al. (2007).
    Acoustic Masking and Communication Impairment--The severity or 
importance of an acoustic masking event can vary based on the length of 
time that the masking occurs, the frequency of the masking signal 
(which determines which sounds that are masked, which may be of varying 
importance to the animal), and other factors. Some acoustic masking 
would be considered Level B Harassment, if 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 disrupt behavioral patterns 
by inhibiting an animal's ability to communicate with conspecifics and 
interpret other environmental cues important for predator avoidance and 
prey capture. However, depending on the degree (elevation of threshold 
in dB), duration (i.e., recovery time), and frequency range of TTS, and 
the context in which it is experienced, TTS can have effects on marine 
mammals ranging from discountable to serious (similar to those 
discussed in auditory masking). 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 a time when communication is critical for successful mother/calf 
interactions could have more serious impacts if it were in the same 
frequency band as the necessary vocalizations and of a severity that it 
impeded communication.
    The following physiological mechanisms are thought to play a role 
in inducing auditory fatigue: Effects to sensory hair cells in the 
inner ear that reduce their sensitivity, modification of the chemical 
environment within the sensory cells, residual muscular activity in the 
middle ear, displacement of certain inner ear membranes, increased 
blood flow, and post-stimulatory reduction in both efferent and sensory 
neural output. Ward (1997) suggested that when these effects result in 
TTS rather than PTS, they are within the normal bounds of physiological 
variability and tolerance and do not represent a physical injury. 
Additionally, Southall et al., (2007) indicate that although PTS is a 
tissue injury, TTS is not, because the reduced hearing sensitivity 
following exposure to intense sound results primarily from fatigue, not 
loss, of cochlear hair cells and supporting structures and is 
reversible. Accordingly, NMFS classifies TTS (when resulting from 
exposure to either MFAS/HFAS or underwater detonations) as Level B 
Harassment, not Level A Harassment (injury).

Level A Harassment

    Of the potential effects that were described in the Potential 
Effects of Exposure of Marine Mammals to MFAS/HFAS and Underwater 
Detonations Section, following are the types of effects that fall into 
the Level A Harassment category:
    PTS--PTS (resulting either from exposure to MFAS/HFAS or explosive 
detonations) is irreversible and considered an injury. PTS results from 
exposure to intense sounds that cause a permanent loss of inner or 
outer cochlear hair cells or exceed the elastic limits of certain 
tissues and membranes in the middle and inner ears and result in 
changes in the chemical composition of the inner ear fluids. Although 
PTS is considered an injury, the effects of PTS on the fitness of an 
individual can vary based on the degree of TTS and the frequency band 
that it is in.
    Tissue Damage due to Acoustically Mediated Bubble Growth--A few 
theories suggest ways in which gas bubbles become enlarged through 
exposure to intense sounds (MFAS/HFAS) to the point where tissue damage 
results. In rectified diffusion, exposure to a sound field would cause 
bubbles to increase in size. A short duration of active sonar pings 
(such as that which an animal exposed to MFAS would be most likely to 
encounter) would not likely be long enough to drive bubble growth to 
any substantial size. Alternately, bubbles could be destabilized by 
high-level sound exposures such that bubble growth then occurs through 
static diffusion of gas out of the tissues. The degree of 
supersaturation and exposure levels observed to cause microbubble 
destabilization are unlikely to occur, either alone or in concert 
because of how close an animal would need to be to the sound source to 
be exposed to high enough levels, especially considering the likely 
avoidance of the sound source and the required mitigation. Still, 
possible tissue damage from either of these processes would be 
considered an injury.
    Tissue Damage due to Behaviorally Mediated Bubble Growth--Several 
authors suggest mechanisms in which marine mammals could behaviorally 
respond to exposure to MFAS/HFAS by altering their dive patterns in a 
manner (unusually rapid ascent, unusually long series of surface dives, 
etc.) that might result in unusual bubble formation or growth 
ultimately resulting in tissue damage (emboli, etc.). In this scenario, 
the rate of ascent would need to be sufficiently rapid to compromise 
behavioral or physiological protections against nitrogen bubble 
formation. There is considerable disagreement among scientists as to 
the likelihood of this phenomenon (Piantadosi and Thalmann, 2004; Evans 
and Miller, 2003). Although it has been argued that the tissue effects 
observed from recent beaked whale strandings are consistent with gas 
emboli and bubble-induced tissue separations (Jepson et al., 2003; 
Fernandez et al., 2005), nitrogen bubble formation as the cause of the 
traumas has not been verified. If tissue damage does occur by this 
phenomenon, it would be considered an injury.
    Physical Disruption of Tissues Resulting from Explosive Shock 
Wave--Physical damage of tissues resulting from a shock wave (from an 
explosive detonation) is classified as an injury. Blast effects are 
greatest at the gas-liquid interface (Landsberg, 2000) and gas-
containing organs, particularly the lungs and gastrointestinal tract, 
are especially susceptible (Goertner, 1982; Hill 1978; Yelverton et 
al., 1973). Nasal sacs, larynx, pharynx, trachea, and lungs may be 
damaged by compression/expansion caused by the oscillations of the 
blast gas bubble (Reidenberg and Laitman, 2003). Severe damage (from 
the shock wave) to the ears can include tympanic membrane rupture, 
fracture of the ossicles, damage to the cochlea, hemorrhage, and 
cerebrospinal fluid leakage into the middle ear.
    Vessel Strike, Ordnance Strike, Entanglement--Although not 
anticipated (or authorized) to occur, vessel strike, ordnance strike, 
or entanglement in materials associated with the specified action are 
considered Level A Harassment or mortality.

Acoustic Take Criteria

    For the purposes of an MMPA incidental take authorization, three 
types of take are identified: Level B Harassment; Level A Harassment; 
and mortality (or serious injury leading to mortality). The categories 
of marine mammal responses (physiological and behavioral) that fall 
into the two harassment categories were described in the previous 
section.
    Because the physiological and behavioral responses of the majority 
of the marine mammals exposed to MFAS/HFAS and underwater detonations

[[Page 33874]]

cannot be detected or measured (not all responses visible external to 
animal, portion of exposed animals underwater (so not visible), many 
animals located many miles from observers and covering very large area, 
etc.) and because NMFS must authorize take prior to the impacts to 
marine mammals, a method is needed to estimate the number of 
individuals that will be taken, pursuant to the MMPA, based on the 
proposed action. To this end, NMFS developed acoustic criteria that 
estimate at what received level (when exposed to MFAS/HFAS or explosive 
detonations) Level B Harassment, Level A Harassment, and mortality (for 
explosives) of marine mammals would occur. The acoustic criteria for 
MFAS/HFAS and Underwater Detonations (IEER) are discussed below.

MFAS/HFAS Acoustic Criteria

    Because relatively few applicable data exist to support acoustic 
criteria specifically for HFAS and because such a small percentage of 
the active sonar pings that marine mammals will likely be exposed to 
incidental to this activity come from a HFAS source (the vast majority 
come from MFAS sources), NMFS will apply the criteria developed for the 
MFAS to the HFAS as well.
    NMFS utilizes three acoustic criteria for MFAS/HFAS: PTS (injury--
Level A Harassment), TTS (Level B Harassment), and behavioral 
harassment (Level B Harassment). Because the TTS and PTS criteria are 
derived similarly and the PTS criteria was extrapolated from the TTS 
data, the TTS and PTS acoustic criteria will be presented first, before 
the behavioral criteria.
    For more information regarding these criteria, please see the 
Navy's DEIS for NWTRC.

Level B Harassment Threshold (TTS)

    As mentioned above, behavioral disturbance, acoustic masking, and 
TTS are all considered Level B Harassment. Marine mammals would usually 
be behaviorally disturbed at lower received levels than those at which 
they would likely sustain TTS, so the levels at which behavioral 
disturbance are likely to occur is considered the onset of Level B 
Harassment. The behavioral responses of marine mammals to sound are 
variable, context specific, and, therefore, difficult to quantify (see 
Risk Function section, below). Alternately, TTS is a physiological 
effect that has been studied and quantified in laboratory conditions. 
Because data exist to support an estimate of at what received levels 
marine mammals will incur TTS, NMFS uses an acoustic criteria to 
estimate the number of marine mammals that might sustain TTS. TTS is a 
subset of Level B Harassment (along with sub-TTS behavioral harassment) 
and we are not specifically required to estimate those numbers; 
however, the more specifically we can estimate the affected marine 
mammal responses, the better the analysis.
    A number of investigators have measured TTS in marine mammals. 
These studies measured hearing thresholds in trained marine mammals 
before and after exposure to intense sounds. The existing cetacean TTS 
data are summarized in the following bullets.
    <bullet> 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 [mu]Pa (EL = 192 to 201 dB re 1 
[mu]Pa<SUP>2</SUP>-s). The mean exposure SPL and EL for onset-TTS were 
195 dB re 1 [mu]Pa and 195 dB re 1 [mu]Pa<SUP>2</SUP>-s, respectively.
    <bullet> 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 [mu]<SUP>2</SUP>-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.
    <bullet> 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 [mu]Pa 
(EL about 213 dB re [mu]<SUP>2</SUP>-s). No TTS was observed after 
exposure to the same sound at 165 and 171 dB re 1 [mu]Pa. 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 [mu]Pa (EL about 193 
to 195 dB re 1 [mu]<SUP>2</SUP>-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.
    <bullet> 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.
    <bullet> Finneran et al., (2007) conducted TTS experiments with 
bottlenose dolphins exposed to intense 20 kHz fatiguing tone. 
Behavioral and auditory evoked potentials (using sinusoidal amplitude 
modulated tones creating auditory steady state response [AASR]) were 
used to measure TTS. The fatiguing tone was either 16 (mean = 193 re 
1[mu]Pa, SD = 0.8) or 64 seconds (185-186 re 1[mu]Pa) in duration. TTS 
ranged from 19-33db from behavioral measurements and 40-45dB from ASSR 
measurements.
    <bullet> Kastak et al., (1999a, 2005) conducted TTS experiments 
with three species of pinnipeds, California sea lion, northern elephant 
seal and a Pacific harbor seal, exposed to continuous underwater sounds 
at levels of 80 and 95 dB sensation level at 2.5 and 3.5 kHz for up to 
50 minutes. Mean TTS shifts of up to 12.2 dB occurred with the harbor 
seals showing the largest shift of 28.1 dB. Increasing the sound 
duration had a greater effect on TTS than increasing the sound level 
from 80 to 95 dB.
    Some of the more important data obtained from these studies are 
onset-TTS levels (exposure levels sufficient to cause a just-measurable 
amount of TTS) often defined as 6 dB of TTS (for example, Schlundt et 
al., 2000) and the fact that energy metrics (sound exposure levels 
(SEL), which include a duration component) better predict when an 
animal will sustain TTS than pressure (SPL) alone. NMFS' TTS criteria 
(which indicate the received level at which onset TTS (>6dB) is 
induced) for MFAS/HFAS are as follows:
    <bullet> Cetaceans--195 dB re 1 [mu]Pa\2\-s (based on mid-frequency 
cetaceans--no published data exist on auditory effects of noise in low-
or high-frequency cetaceans (Southall et al., (2007)).
    <bullet> Harbor Seals (and closely related species)--183 dB re 1 
[mu]Pa\2\-s.
    <bullet> Northern Elephant Seals (and closely related species)--204 
dB re 1 [mu]Pa\2\-s.
    <bullet> California Sea Lions (and closely related species)--206 dB 
re 1 [mu]Pa\2\-s.

[[Page 33875]]

    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 NWTRC LOA application. Because they 
are both otariids, the California sea lion criterion is used to 
estimate take of northern fur seals for this authorization.

Level A Harassment Threshold (PTS)

    For acoustic effects, because the tissues of the ear appear to be 
the most susceptible to the physiological effects of sound, and because 
threshold shifts tend to occur at lower exposures than other more 
serious auditory effects, NMFS has determined that PTS is the best 
indicator for the smallest degree of injury that can be measured. 
Therefore, the acoustic exposure associated with onset-PTS is used to 
define the lower limit of the Level A harassment.
    PTS data do not currently exist for marine mammals and are unlikely 
to be obtained due to ethical concerns. However, PTS levels for these 
animals may be estimated using TTS data from marine mammals and 
relationships between TTS and PTS that have been discovered through 
study of terrestrial mammals. NMFS uses the following acoustic criteria 
for injury:
    <bullet> Cetaceans--215 dB re 1 [mu]Pa\2\-s (based on mid-frequency 
cetaceans--no published data exist on auditory effects of noise in low-
or high-frequency cetaceans (Southall et al., (2007)).
    <bullet> Harbor Seals (and closely related species)--203 dB re 1 
[mu]Pa\2\-s.
    <bullet> Northern Elephant Seals (and closely related species)--224 
dB re 1 [mu]Pa\2\-s.
    <bullet> California Sea Lions (and closely related species)--226 dB 
re 1 [mu]Pa\2\-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 20dB 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 NWTRC LOA application. Southall et 
al. (2007) recommend a precautionary dual criteria for TTS (230 dB re 1 
[mu]Pa (SPL peak pressure) in addition to 215 dB re 1 [mu]Pa\2\-s 
(SEL)) to account for the potentially damaging transients embedded 
within non-pulse exposures. However, in the case of MFAS/HFAS, the 
distance at which an animal would receive 215 dB (SEL) is farther from 
the source (i.e. , more conservative) than the distance at which they 
would receive 230 dB (SPL peak pressure) and therefore, it is not 
necessary to consider 230 dB peak.
    We note here that behaviorally mediated injuries (such as those 
that have been hypothesized as the cause of some beaked whale 
strandings) could potentially occur in response to received levels 
lower than those believed to directly result in tissue damage. As 
mentioned previously, data to support a quantitative estimate of these 
potential effects (for which the exact mechanism is not known and in 
which factors other than received level may play a significant role) do 
not exist. However, based on the number of years (more than 40) and 
number of hours of MFAS per year that the U.S. (and other countries) 
has operated compared to the reported (and verified) cases of 
associated marine mammal strandings, NMFS believes that the probability 
of these types of injuries is very low (especially in the NWTRC, in 
which no major exercises using multiple surface vessel sources will 
occur and in which the surface vessel sonar use is less than 110 hours 
annually).

Level B Harassment Risk Function (Behavioral Harassment)

    In 2006, NMFS issued the first MMPA authorization to allow the take 
of marine mammals incidental to MFAS (to the Navy for the Rim of the 
Pacific Exercises (RIMPAC)). For that authorization, NMFS used 173 dB 
SEL as the criterion for the onset of behavioral harassment (Level B 
Harassment). This type of single number criterion is referred to as a 
step function, in which (in this example) all animals estimated to be 
exposed to received levels above 173 db SEL would be predicted to be 
taken by Level B Harassment and all animals exposed to less than 173 dB 
SEL would not be taken by Level B Harassment. As mentioned previously, 
marine mammal behavioral responses to sound are highly variable and 
context specific (affected by differences in acoustic conditions; 
differences between species and populations; differences in gender, 
age, reproductive status, or social behavior; or the prior experience 
of the individuals), which does not support the use of a step function 
to estimate behavioral harassment.
    Unlike step functions, acoustic risk continuum functions (which are 
also called ``exposure-response functions,'' ``dose-response 
functions,'' or ``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 (see Figure 1a). In January 2009, NMFS issued 3 final rules 
governing the incidental take of marine mammals (Navy's Hawaii Range 
Complex, Southern California Range Complex, and Atlantic Fleet Active 
Sonar Training) that used a risk continuum to estimate the percentage 
of marine mammals exposed to various levels of MFAS that would respond 
in a manner NMFS considers harassment. The Navy and NMFS have 
previously used acoustic risk functions to estimate the probable 
responses of marine mammals to acoustic exposures for other training 
and research programs. Examples of previous application include the 
Navy FEISs on the SURTASS LFA sonar (U.S. Department of the Navy, 
2001c); the North Pacific Acoustic Laboratory experiments conducted off 
the Island of Kauai (Office of Naval Research, 2001), and the 
Supplemental EIS for SURTASS LFA sonar (U.S. Department of the Navy, 
2007d). 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 that meet NMFS standards of quality become available and can be 
appropriately and effectively incorporated.
    The particular acoustic risk functions developed by NMFS and the 
Navy (see Figures 1a and 1b) estimate the probability of behavioral 
responses to MFAS/HFAS (interpreted as the percentage of the exposed 
population) that NMFS would classify as harassment for the purposes of 
the MMPA given exposure to specific received levels of MFAS/HFAS. The 
mathematical function (below) underlying this curve is a cumulative 
probability distribution adapted from a solution in Feller (1968) and 
was also used in predicting risk for the Navy's SURTASS LFA MMPA 
authorization as well.

[[Page 33876]]

[GRAPHIC] [TIFF OMITTED] TP13JY09.147

Where:

R = Risk (0-1.0)
L = Received level (dB re: 1 [mu]Pa)
B = Basement received level = 120 dB re: 1 [mu]Pa
K = Received level increment above B where 50-percent risk = 45 dB 
re: 1 [mu]Pa
A = Risk transition sharpness parameter = 10 (odontocetes and 
pinnipeds) or 8 (mysticetes)

    In order to use this function to estimate the percentage of an 
exposed population that would respond in a manner that NMFS classifies 
as Level B Harassment, based on a given received level, the values for 
B, K and A need to be identified.
    B Parameter (Basement)--The B parameter is the estimated received 
level below which the probability of disruption of natural behavioral 
patterns, such as migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned or 
significantly altered approaches zero for the MFAS/HFAS risk 
assessment. At this received level, the curve would predict that the 
percentage of the exposed population that would be taken by Level B 
Harassment approaches zero. For MFAS/HFAS, NMFS has determined that B = 
120 dB. This level is based on a broad overview of the levels at which 
many species have been reported responding to a variety of sound 
sources.
    K Parameter (representing the 50 percent Risk Point)--The K 
parameter is based on the received level that corresponds to 50% risk, 
or the received level at which we believe 50% of the animals exposed to 
the designated received level will respond in a manner that NMFS 
classifies as Level B Harassment. The K parameter (K = 45 dB) is based 
on three data sets in which marine mammals exposed to mid-frequency 
sound sources were reported to respond in a manner that NMFS would 
classify as Level B Harassment. There is widespread consensus that 
marine mammal responses to MFA sound signals need to be better defined 
using controlled exposure experiments (Cox et al., 2006; Southall et 
al., 2007). The Navy is contributing to an ongoing 3-Phase 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. The results from Phase 1 of this study are 
discussed in the Potential Effects of Specified Activities on Marine 
Mammals section and the results from Phase 2 are expected to be 
available in the fall of 2009. Phase 3 will be conducted in the 
Mediterranean Sea in summer 2009. Additionally, the Navy recently 
tagged whales in conjunction with the 2008 RIMPAC exercises; however, 
analysis of these data is not yet complete. Until additional 
appropriate 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 MFAS/HFAS risk 
function. These data sets, summarized below, represent the only known 
data that specifically relate altered behavioral responses (that NMFS 
would consider Level B Harassment) to exposure--at specific received 
levels--to MFAS and sources within or having components within the 
range of MFAS (1-10 kHz).
    Even though these data are considered the most representative of 
the proposed specified activities, and therefore the most appropriate 
on which to base the K parameter (which basically determines the 
midpoint) of the risk function, these data have limitations, which are 
discussed in Appendix D of the Navy's DEIS for NWTRC.
    1. Controlled Laboratory Experiments with Odontocetes (SSC Data 
set)--Most of the observations of the behavioral responses of toothed 
whales resulted from a series of controlled experiments on bottlenose 
dolphins and beluga whales conducted by researchers at SSC's facility 
in San Diego, California (Finneran et al., 2001, 2003, 2005; Finneran 
and Schlundt, 2004; Schlundt et al., 2000). In experimental trials 
(designed to measure TTS) with marine mammals trained to perform tasks 
when prompted, scientists evaluated whether the marine mammals still 
performed these tasks when exposed to 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 1 [mu]Pa) 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:
    <bullet> 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.
    <bullet> Finneran et al., (2001, 2003, 2005) conducted 2 separate 
TTS experiments using 1-sec tones at 3 kHz. The test methods were 
similar to that of Schlundt et al., (2000) except the tests were 
conducted in a pool with very low ambient noise level (below 50 dB re 1 
[mu]Pa\2\/hertz [Hz]), and no masking noise was used. In the first, 
fatiguing sound levels were increased from 160 to 201 dB SPL. In the 
second experiment, fatiguing sound levels between 180 and 200 dB SPL 
were randomly presented.
    Bottlenose dolphins exposed to 1-second (sec) intense tones 
exhibited short-term changes in behavior above received sound levels of 
178 to 193 dB re 1 [mu]Pa (rms), and beluga whales did so at received 
levels of 180 to 196 dB and above.
    2. Mysticete Field Study (Nowacek et al., 2004)--The only available 
and applicable data relating mysticete responses to exposure to mid-
frequency sound sources is from Nowacek et al., (2004). Nowacek et al., 
(2004) documented observations of the behavioral response of North 
Atlantic right whales exposed to alert stimuli containing mid-frequency 
components in the Bay of Fundy. Investigators used archival digital 
acoustic recording tags (DTAG) to record the behavior (by measuring 
pitch, roll, heading, and depth) of right whales in the presence of an 
alert signal, and to calibrate received sound levels. The alert signal 
was 18 minutes of exposure consisting of three 2-minute signals played 
sequentially three times over. The three signals had a 60% duty cycle 
and

[[Page 33877]]

consisted of: (1) Alternating 1-sec pure tones at 500 Hz and 850 Hz; 
(2) a 2-sec logarithmic down-sweep from 4,500 Hz to 500 Hz; and (3) a 
pair of low (1,500 Hz)-high (2,000 Hz) sine wave tones amplitude 
modulated at 120 Hz and each 1-sec long. The purposes of the alert 
signal were (a) to pique the mammalian auditory system with disharmonic 
signals that cover the whales' estimated hearing range; (b) to maximize 
the signal to noise ratio (obtain the largest difference between 
background noise) and (c) to provide localization cues for the whale. 
The maximum source level used was 173 dB SPL.
    Nowacek et al. (2004) reported that five out of six whales exposed 
to the alert signal with maximum received levels ranging from 133 to 
148 dB re 1 [mu]Pa significantly altered their regular behavior and did 
so in identical fashion. Each of these five whales: (i) Abandoned their 
current foraging dive prematurely as evidenced by curtailing their 
'bottom time'; (ii) executed a shallow-angled, high power (i.e., 
significantly increased fluke stroke rate) ascent; (iii) remained at or 
near the surface for the duration of the exposure, an abnormally long 
surface interval; and (iv) spent significantly more time at subsurface 
depths (1-10 m) compared with normal surfacing periods when whales 
normally stay within 1 m (1.1 yd) of the surface.
    3. Odontocete Field Data (Haro Strait--USS SHOUP)--In May 2003, 
killer whales (Orcinus orca) were observed exhibiting behavioral 
responses generally described as avoidance behavior while the U.S. Ship 
(USS) SHOUP was engaged in MFAS in the Haro Strait in the vicinity of 
Puget Sound, Washington. Those observations have been documented in 
three reports developed by Navy and NMFS (NMFS, 2005; Fromm, 2004a, 
2004b; DON, 2003). Although these observations were made in an 
uncontrolled environment, the sound field that may have been associated 
with the active sonar operations was estimated using standard acoustic 
propagation models that were verified (for some but not all signals) 
based on calibrated in situ measurements from an independent researcher 
who recorded the sounds during the event. Behavioral observations were 
reported for the group of whales during the event by an experienced 
marine mammal biologist who happened to be on the water studying them 
at the time. The observations associated with the USS SHOUP provide the 
only data set available of the behavioral responses of wild, non-
captive animal upon actual exposure to AN/SQS-53 sonar.
    U.S. Department of Commerce (National Marine Fisheries, 2005a); 
U.S. Department of the Navy (2004b); and Fromm (2004a, 2004b) 
documented reconstruction of sound fields produced by USS SHOUP 
associated with the behavioral response of killer whales observed in 
Haro Strait. Observations from this reconstruction included an 
approximate closest approach time which was correlated to a 
reconstructed estimate of received level. Observations from this 
reconstruction included an estimate of 169.3 dB SPL which represents 
the mean level at a point of closest approach within a 500 m wide area 
in which the animals were exposed. Within that area, the estimated 
received levels varied from approximately 150 to 180 dB SPL.
    Calculation of K Parameter--NMFS and the Navy used the mean of the 
following values to define the midpoint of the function: (1) The mean 
of the lowest received levels (185.3 dB) at which individuals responded 
with altered behavior to 3 kHz tones in the SSC data set; (2) the 
estimated mean received level value of 169.3 dB produced by the 
reconstruction of the USS SHOUP incident in which killer whales exposed 
to MFAS (range modeled possible received levels: 150 to 180 dB); and 
(3) the mean of the 5 maximum received levels at which Nowacek et al. 
(2004) observed significantly altered responses of right whales to the 
alert stimuli than to the control (no input signal) is 139.2 dB SPL. 
The arithmetic mean of these three mean values is 165 dB SPL. The value 
of K is the difference between the value of B (120 dB SPL) and the 50% 
value of 165 dB SPL; therefore, K = 45.
    A Parameter (Steepness)--NMFS determined that a steepness parameter 
(A) = 10 is appropriate for odontocetes (except harbor porpoises) and 
pinnipeds and A = 8 is appropriate for mysticetes.
    The use of a steepness parameter of A = 10 for odontocetes for the 
MFAS/HFAS risk function was based on the use of the same value for the 
SURTASS LFA risk continuum, which was supported by a sensitivity 
analysis of the parameter presented in Appendix D of the SURTASS/LFA 
FEIS (U.S. Department of the Navy, 2001c). As concluded in the SURTASS 
FEIS/EIS, the value of A = 10 produces a curve that has a more gradual 
transition than the curves developed by the analyses of migratory gray 
whale studies (Malme et al., 1984; Buck and Tyack, 2000; and SURTASS 
LFA Sonar EIS, Subchapters 1.43, 4.2.4.3 and Appendix D, and National 
Marine Fisheries Service, 2008).
    NMFS determined that a lower steepness parameter (A = 8), resulting 
in a shallower curve, was appropriate for use with mysticetes and MFAS/
HFAS. The Nowacek et al. (2004) data set contains the only data 
illustrating mysticete behavioral responses to a sound source that 
encompasses frequencies in the mid-frequency sound spectrum. A 
shallower curve (achieved by using A = 8) better reflects the risk of 
behavioral response at the relatively low received levels at which 
behavioral responses of right whales were reported in the Nowacek et 
al. (2004) data. Compared to the odontocete curve, this adjustment 
results in an increase in the proportion of the exposed population of 
mysticetes being classified as behaviorally harassed at lower RLs, such 
as those reported in and supported by the only data set currently 
available.
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    Basic Application of the Risk Function--The risk function is used 
to estimate the percentage of an exposed population that is likely to 
exhibit behaviors that would qualify as harassment (as that term is 
defined by the MMPA applicable to military readiness activities, such 
as the Navy's testing and training with MFAS) at a given received level 
of sound. For example, at 165 dB SPL (dB re: 1[mu]Pa rms), the risk (or 
probability) of harassment is defined according to this function as 
50%, and Navy/NMFS applies that by estimating that 50% 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

[[Page 33879]]

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. Additionally, 
although these other factors cannot be taken into consideration 
quantitatively in the risk function, NMFS considers these other 
variables qualitatively in our analysis, when applicable data are 
available.
    As more specific and applicable data become available for MFAS/HFAS 
sources, NMFS can use these data to modify the outputs generated by the 
risk function to make them more realistic. Ultimately, data may exist 
to justify the use of additional, alternate, or multi-variate 
functions. For example, as mentioned previously, the distance from the 
sound source and whether it is perceived as approaching or moving away 
can affect the way an animal responds to a sound (Wartzok et al., 
2003). In the NWTRC example, animals exposed to received levels between 
120 and 140 dB may be 28-70 nm (51-130 km) from a sound source 
depending on seasonal variations; those distances could influence 
whether those animals perceive the sound source as a potential threat, 
and their behavioral responses to that threat. Though there are data 
showing response of certain marine mammal species to mid-frequency 
sound sources at that received level, NMFS does not currently have any 
data that describe the response of marine mammals to mid-frequency 
sounds at that distance, much less data that compare responses to 
similar sound levels at varying distances (much less for MFAS/HFAS). 
However, if applicable data meeting NMFS standards were to become 
available, NMFS would re-evaluate the risk function and to incorporate 
any additional variables into the ``take'' estimates.

Harbor Porpoise Behavioral Harassment Criteria

    The information currently available regarding these inshore species 
that inhabit shallow and coastal waters suggests a very low threshold 
level of response for both captive and wild animals. Threshold levels 
at which both captive (e.g. Kastelein et al., 2000; Kastelein et al., 
2005; Kastelein et al., 2006, Kastelein et al., 2008) and wild harbor 
porpoises (e.g. Johnston, 2002) responded to sound (e.g. acoustic 
harassment devices (ADHs), acoustic deterrent devices (ADDs), or other 
non-pulsed sound sources) is very low (e.g. ~120 dB SPL), although the 
biological significance of the disturbance is uncertain. Therefore, a 
step function threshold of 120 dB SPL was used to estimate take of 
harbor porpoises instead of the risk functions used for other species 
(i.e., we assume for the purpose of estimating take that all harbor 
porpoises exposed to 120 dB or higher MFAS/HFAS will be taken by Level 
B behavioral harassment).

Explosive Detonation Criteria

    The criteria for mortality, Level A Harassment, and Level B 
Harassment resulting from explosive detonations were initially 
developed for the Navy's Seawolf and Churchill ship-shock trials and 
have not changed since other MMPA authorizations issued for explosive 
detonations. The criteria, which are applied to cetaceans and 
pinnipeds, are summarized in Table 7. Additional information regarding 
the derivation of these criteria is available in the Navy's DEIS for 
the NWTRC, the LOA application, and in the Navy's CHURCHILL FEIS (U.S. 
Department of the Navy, 2001c).

[[Page 33880]]

[GRAPHIC] [TIFF OMITTED] TP13JY09.149

Estimates of Potential Marine Mammal Exposure

    Estimating the take that will result from the proposed activities 
entails the following three general steps: (1) Propagation model 
estimates animals exposed to sources at different levels; (2) further 
modeling determines number of exposures to levels indicated in criteria 
above (i.e., number of takes); and (3) post-modeling corrections refine 
estimates to make them more accurate. More information regarding the 
models used, the assumptions used in the models, and the process of 
estimating take is available in Appendix D of the Navy's DEIS for 
NWTRC.
    (1) In order to quantify the types of take described in previous 
sections that are predicted to result from the Navy's specified 
activities, the Navy first uses a sound propagation model that predicts 
the number of animals that will be exposed to a range of levels of 
pressure and energy (of the metrics used in the criteria) from MFAS/
HFAS and explosive detonations based on several important pieces of 
information, including:
    <bullet> Characteristics of the sound sources.
    <bullet> Active sonar source characteristics include: Source level 
(with horizontal and vertical directivity corrections), source depth, 
center frequency, source directivity (horizontal/vertical beam width 
and horizontal/vertical steer direction), and ping spacing.
    <bullet> Explosive source characteristics include: The weight of an 
explosive, the type of explosive, the detonation depth, number of 
successive explosions.
    <bullet> Transmission loss (in 16 representative environmental 
provinces in two seasons) based on: Water depth; sound speed 
variability throughout the water column (warm season exhibits a weak 
surface duct, cold season exhibits a relatively strong surface duct); 
bottom geo-acoustic properties (bathymetry); and wind speed.
    <bullet> The estimated density of each marine mammal species in the 
NWTRC (see Table 4), horizontally distributed uniformly and vertically 
distributed according to dive profiles based on field data.
    (2) Next, the criteria discussed in the previous section are 
applied to the estimated exposures to predict the number of exposures 
that exceed the criteria, i.e., the number of takes by Level B 
Harassment, Level A Harassment, and mortality.
    (3) During the development of the EIS for NWTRC, NMFS and the Navy 
determined that the output of the model could be made more realistic by 
applying post-modeling corrections to account for the following:
    <bullet> Acoustic footprints for active sonar sources must account 
for land masses (by subtracting them out).
    <bullet> Acoustic footprints for active sonar sources should not be 
added independently; rather, the degree to which the footprints from 
multiple ships participating in the same exercise would typically 
overlap needs to be taken into consideration.
    <bullet> Acoustic modeling should account for the maximum number of 
individuals of a species that could potentially be exposed to active 
sonar within the course of 1 day or a discreet continuous sonar event 
if less than 24 hours.
    Last, the Navy's specified activities have been described based on 
best estimates of the number of MFAS/HFAS hours that the Navy will 
conduct. The exact number of hours may vary from year to year but will 
not exceed the 5-year total indicated in Table 8 (by multiplying the 
yearly estimate by 5) by

[[Page 33881]]

more than 10%. NMFS estimates that a 10-percent increase in active 
sonar hours would result in approximately a 10-percent increase in the 
number of takes, and we have considered this possibility in our 
analysis.
    The Navy's model provides a systematic and repeatable way of 
estimating the number of animals that will be taken by Level A and 
Level B Harassment. The model is based on the sound propagation 
characteristics of the sound sources, physical characteristics of the 
surrounding environment, and a uniform density of marine mammals. As 
mentioned in the previous sections, many other factors will likely 
affect how and the degree to which marine mammals are impacted both at 
the individual and species level by the Navy's activity (such as social 
ecology of the animals, long term exposures in one area, etc.); 
however, in the absence of quantitative data, NMFS has, and will 
continue, to evaluate that sort of information qualitatively.
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[[Page 33882]]

[GRAPHIC] [TIFF OMITTED] TP13JY09.150

BILLING CODE 3510-22-C

Mortality

    Evidence from five beaked whale strandings, all of which have taken 
place outside the NWTRC Range Complex, and have occurred over 
approximately a decade, suggests that the exposure of beaked whales to 
MFAS in the presence of certain conditions (e.g., multiple units using 
active sonar, steep bathymetry, constricted channels, strong surface 
ducts, etc.) may result in strandings, potentially leading to 
mortality. Although these physical

[[Page 33883]]

factors believed to have contributed to the likelihood of beaked whale 
strandings are not present, in their aggregate, in the NWTRC, 
scientific uncertainty exists regarding what other factors, or 
combination of factors, may contribute to beaked whale strandings. 
However, because none of the MFAS/HFAS ASW exercises conducted in the 
NWTRC are major exercises employing multiple surface vessels, the 
exercises last 1.5 hours or less, and only 65 exercises are planned 
(for a total of about 100 hours of surface vessel sonar operation), 
NMFS and the Navy believe it is highly unlikely that marine mammals 
would respond to these exercises in a manner that would result in a 
stranding. Therefore, no authorization for mortality has been requested 
or proposed.

Effects on Marine Mammal Habitat

    The Navy's proposed training exercises could potentially affect 
marine mammal habitat through the introduction of pressure, sound, and 
expendable materials into the water column, which in turn could impact 
prey species of marine mammals, or cause bottom disturbance or changes 
in water quality. Each of these components was considered in the NWTRC 
DEIS and was determined by the Navy to have no effect on marine mammal 
habitat. Based on the information below and the supporting information 
included in the Navy's DEIS, NMFS has preliminarily determined that the 
NWTRC training activities will not have significant or long term 
impacts on marine mammal habitat. Unless the sound source or explosive 
detonation is stationary and/or continuous over a long duration in one 
area, the effects of the introduction of sound into the environment are 
generally considered to have a less severe impact on marine mammal 
habitat than the physical alteration of the habitat. Marine mammals may 
be temporarily displaced from areas where Navy training is occurring, 
but the area will likely be utilized again after the activities have 
ceased. A summary of the conclusions are included in subsequent 
sections.

Critical Habitat

    Critical Habitat has been designated for 2 species in the NWTRC, 
southern resident killer whales (in the inshore area) and Steller sea 
lions (3 haulouts near the southern end of the offshore area). No sonar 
training is planned for the inshore area and explosive use will be 
limited to 4 detonations of small 2.5-lb charges annually. The Navy 
plans to abide by the 3000-ft air and water stand-off distances 
associated with the Steller sea lion critical habitat. Effects to 
designated critical habitat will be fully analyzed in the Navy's ESA 
Section 7 consultation for the NWTRC.

Effects on Food Resources

Fish

    The Navy's DEIS includes a detailed discussion of the effects of 
active sonar on marine fish. In summary, studies have indicated that 
acoustic communication and orientation of fish may be restricted by 
anthropogenic sound in their environment. However, the vast majority of 
fish species studied to date are hearing generalists and cannot hear 
sounds above 500 to 1,500 Hz (0.5 to 1.5 kHz) (depending upon the 
species). Therefore, these fish species are not likely to be affected 
behaviorally from higher frequency sounds such as MFAS/HFAS. Moreover, 
even those marine species that may hear above 1.5 kHz, such as a few 
sciaenids and the clupeids (and relatives), have relatively poor 
hearing above 1.5 kHz as compared to their hearing sensitivity at lower 
frequencies, so it is likely that the fish will only actually hear the 
sounds if the fish and source were fairly close to one another. 
Finally, since the vast majority of sounds that are of biological 
relevance to fish are below 1 kHz (e.g., Zelick et al., 1999; Ladich 
and Popper, 2004), even if a fish detects a mid- or high-frequency 
sound, these sounds will not likely mask detection of lower frequency 
biologically relevant sounds. Thus, based on the available information, 
a reasonable conclusion is that there will be few, and more likely no, 
impacts on the behavior of fish from active sonar.
    Though mortality has been shown to occur in one species, a hearing 
specialist, as a result of exposure to non-impulsive sources, the 
available evidence does not suggest that exposures such as those 
anticipated from MFAS/HFAS would result in significant fish mortality 
on a population level. The mortality that was observed was considered 
insignificant in light of natural daily mortality rates. Experiments 
have shown that exposure to loud sound can result in significant 
threshold shifts in certain fish that are classified as hearing 
specialists (but not those classified as hearing generalists). 
Threshold shifts are temporary, and considering the best available 
data, no data exist that demonstrate any long-term negative effects on 
marine fish from underwater sound associated with active sonar 
activities. Further, while fish may respond behaviorally to mid-
frequency sources, this behavioral modification is only expected to be 
brief and not biologically significant.
    There are currently no well-established thresholds for estimating 
effects to fish from explosives other than mortality models. Fish that 
are located in the water column, in proximity to the source of 
detonation could be injured, killed, or disturbed by the impulsive 
sound and possibly temporarily leave the area. Continental Shelf Inc. 
(2004) summarized a few studies conducted to determine effects 
associated with removal of offshore structures (e.g., oil rigs) in the 
Gulf of Mexico. Their findings revealed that at very close range, 
underwater explosions are lethal to most fish species regardless of 
size, shape, or internal anatomy. For most situations, cause of death 
in fishes has been massive organ and tissue damage and internal 
bleeding. At longer range, species with gas-filled swimbladders (e.g., 
snapper, cod, and striped bass) are more susceptible than those without 
swimbladders (e.g., flounders, eels). Studies also suggest that larger 
fishes are generally less susceptible to death or injury than small 
fishes. Moreover, elongated forms that are round in cross section are 
less at risk than deep-bodied forms; and orientation of fish relative 
to the shock wave may affect the extent of injury. Open water pelagic 
fish (e.g., mackerel) also seem to be less affected than reef fishes. 
The results of most studies are dependent upon specific biological, 
environmental, explosive, and data recording factors.
    The huge variations in the fish population, including numbers, 
species, sizes, and orientation and range from the detonation point, 
make it very difficult to accurately predict mortalities at any 
specific site of detonation. As mentioned previously, though, only 4 
small detonations are planned for the inshore area and the exercises 
involving larger detonations are conducted far offshore. Most fish 
species experience a large number of natural mortalities, especially 
during early life-stages, and any small level of mortality caused by 
the NWTRC training exercises involving explosives will likely be 
insignificant to the population as a whole.

Invertebrates

    Very little is known about sound detection and use of sound by 
invertebrates (see Budelmann 1992a, b, Popper et al., 2001 for 
reviews). The limited data shows that some crabs are able to detect 
sound, and there has been the suggestion that some other groups of 
invertebrates are also able to detect sounds. In addition, cephalopods 
(octopus and squid) and decapods (lobster, shrimp, and crab) are 
thought

[[Page 33884]]

to sense low-frequency sound (Budelmann, 1992b). Packard et al. (1990) 
reported sensitivity to sound vibrations between 1-100 Hz for three 
species of cephalopods. McCauley et al. (2000) found evidence that 
squid exposed to seismic airguns show a behavioral response including 
inking. However, these were caged animals, and it is not clear how 
unconfined animals may have responded to the same signal and at the 
same distances used. In another study, Wilson et al. (2007) played back 
echolocation clicks of killer whales to two groups of squid (Loligo 
pealeii) in a tank. The investigators observed no apparent behavioral 
effects or any acoustic debilitation from playback of signals up to 199 
to 226 dB re 1 [mu]Pa. It should be noted, however, that the lack of 
behavioral response by the squid may have been because the animals were 
in a tank rather than being in the wild. In another report on squid, 
Guerra et al. (2004) claimed that dead giant squid turned up around the 
time of seismic airgun operations off of Spain. The authors suggested, 
based on analysis of carcasses, that the damage to the squid was 
unusual when compared to other dead squid found at other times. 
However, the report presents conclusions based on a correlation to the 
time of finding of the carcasses and seismic testing, but the evidence 
in support of an effect of airgun activity was totally circumstantial. 
Moreover, the data presented showing damage to tissue is highly 
questionable since there was no way to differentiate between damage due 
to some external cause (e.g., the seismic airgun) and normal tissue 
degradation that takes place after death, or due to poor fixation and 
preparation of tissue. To date, this work has not been published in 
peer reviewed literature, and detailed images of the reportedly damaged 
tissue are also not available.
    In summary, baleen whales feed on the aggregations of krill and 
small schooling fish, while toothed whales feed on epipelagic, 
mesopelagic, and bathypelagic fish and squid. As summarized above and 
in the NWTRC EIS/OEIS in more detail, potential impacts to marine 
mammal food resources within the NWTRC is negligible given both lack of 
hearing sensitivity to mid-frequency sonar, the very geographic and 
spatially limited scope of most Navy at sea activities including 
underwater detonations, and the high biological productivity of these 
resources. No short or long term effects to marine mammal food 
resources from Navy activities are anticipated within the NWTRC.

Military Expendable Material

    Marine mammals are subject to entanglement in expended materials, 
particularly anything incorporating loops or rings, hooks and lines, or 
sharp objects. Most documented cases of entanglements occur when whales 
encounter the vertical lines of fixed fishing gear. This section 
summarizes the potential effects of expended materials on marine 
mammals. Detailed discussion of military expendable material is 
contained within the NWTRC EIS.
    The Navy endeavors to recover expended training materials. 
Notwithstanding, it is not possible to recover all training materials, 
and some may be encountered by marine mammals in the waters of the 
NWTRC. Debris related to military activities that is not recovered 
generally sinks; the amount that might remain on or near the sea 
surface is low, and the density of such expendable materials in the 
NWTRC would be very low. Types of training materials that might be 
encountered include: Parachutes of various types (e.g., those employed 
by personnel or on targets, flares, or sonobuoys); torpedo guidance 
wires, torpedo ``flex hoses;'' cable assemblies used to facilitate 
target recovery; sonobuoys; and EMATT. Although sunken debris might be 
of increased concern for bottom-feeding marine mammals, like the gray 
whale, again, the low density is such that it is very unlikely that 
animals would interact with any of these materials.
    Entanglement in military expendable material was not cited as a 
source of injury or mortality for any marine mammals recorded in a 
large marine mammal and sea turtle stranding database for California 
waters, an area with much higher density of marine mammals. Therefore 
as discussed in the NWTRC EIS, expendable material is highly unlikely 
to directly affect marine mammal species or potential habitat within 
the NWTRC.
    NMFS Office of Habitat Conservation is working with the Navy to 
better identify the potential risks of expended materials from the Navy 
activities as they relate to Essential Fish Habitat. These effects are 
indirectly related to marine mammal habitat, but based on the extent of 
the likely effects described in the Navy's DEIS, NMFS' Office of 
Protected Resources has preliminarily determined that they will not 
result in significant impacts to marine mammal habitat. The outcome of 
this consultation will further inform the marine mammal habitat 
analysis in the final rule.

Water Quality

    The NWTRC EIS/OEIS analyzed the potential effects to water quality 
Expendable Mobile ASW Training Target (EMATT) batteries. In addition, 
sonobuoys were not analyzed since, once scuttled, their electrodes are 
largely exhausted during use and residual constituent dissolution 
occurs more slowly than the releases from activated seawater batteries. 
As such, only the potential effects of batteries and explosions on 
marine water quality in and surrounding the sonobuoy training area were 
completed. It was determined that there would be no significant effect 
to water quality from seawater batteries, lithium batteries, and 
thermal batteries associated with scuttled sonobuoys.
    EMATTs use lithium sulfur dioxide batteries. The constituents in 
the battery react to form soluble hydrogen gas and lithium dithionite. 
The hydrogen gas eventually enters the atmosphere and the lithium 
hydroxide dissociates, forming lithium ions and hydroxide ions. The 
hydroxide is neutralized by the hydronium formed from hydrolysis of the 
acidic sulfur dioxide, ultimately forming water. Sulfur dioxide, a gas 
that is highly soluble in water, is the major reactive component in the 
battery. The sulfur ioxide ionizes in the water, forming bisulfite 
(HSO3) that is easily oxidized to sulfate in the slightly alkaline 
environment of the ocean. Sulfur is present as sulfate in large 
quantities (i.e., 885 milligrams per liter [mg/L]) in the ocean. Thus, 
it was determined that there would be no significant effect to water 
quality from lithium sulfur batteries associated with scuttled EMATTs.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the affected species or stock. Level B 
(behavioral) harassment occurs at the level of the individual(s) and 
does not assume any resulting population-level consequences, though 
there are known avenues through which behavioral disturbance of 
individuals can result in population-level effects (for example: Pink-
footed geese (Anser brachyrhynchus) in undisturbed habitat gained body 
mass and had about a 46-

[[Page 33885]]

percent reproductive success compared with geese in disturbed habitat 
(being consistently scared off the fields on which they were foraging) 
which did not gain mass and has a 17-percent reproductive success). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, 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. Generally speaking, and 
especially with other factors being equal, the Navy and NMFS anticipate 
more severe effects from takes resulting from exposure to higher 
received levels (though this is in no way a strictly linear 
relationship throughout species, individuals, or circumstances) and 
less severe effects from takes resulting from exposure to lower 
received levels.
    The Navy's specified activities have been described based on best 
estimates of the number of MFAS/HFAS hours that the Navy will conduct. 
The exact number of hours (or torpedoes, or pings, whatever unit the 
source is estimated in) may vary from year to year, but will not exceed 
the 5-year total indicated in Table 8 (by multiplying the yearly 
estimate by 5) by more than 10 percent. NMFS estimates that a 10-
percent increase in active sonar hours (torpedoes, pings, etc.) would 
result in approximately a 10-percent increase in the number of takes, 
and we have considered this possibility and the effect of the 
additional active sonar use in our analysis.
    Taking the above into account, considering the sections discussed 
below, and dependent upon the implementation of the proposed mitigation 
measures, NMFS has preliminarily determined that Navy training 
exercises utilizing MFAS/HFAS and underwater detonations will have a 
negligible impact on the marine mammal species and stocks present in 
the NWTRC Range Complex.

Behavioral Harassment

    As discussed in the Potential Effects of Exposure of Marine Mammals 
to MFAS/HFAS and illustrated in the conceptual framework, marine 
mammals can respond to MFAS/HFAS in many different ways, a subset of 
which qualify as harassment (see Behavioral Harassment Section). One 
thing that the take estimates do not take into account is the fact that 
most marine mammals will likely avoid strong sound sources to one 
extent or another. Although an animal that avoids the sound source will 
likely still be taken in some instances (such as if the avoidance 
results in a missed opportunity to feed, interruption of reproductive 
behaviors, etc.) in other cases avoidance may result in fewer instances 
of take than were estimated or in the takes resulting from exposure to 
a lower received level than was estimated, which could result in a less 
severe response. For MFAS/HFAS, the Navy provided information (Table 9) 
estimating what percentage of the total takes that will occur within 
the 10-dB bins (without considering mitigation or avoidance) that are 
within the received levels considered in the risk continuum and for TTS 
and PTS. This table applies specifically to AN/SQS-53C hull-mounted 
active sonar (the most powerful source), with less powerful sources the 
percentages would increase slightly in the lower received levels and 
correspondingly decrease in the higher received levels. As mentioned 
above, an animal's exposure to a higher received level is more likely 
to result in a behavioral response that is more likely to adversely 
affect the health of the animal.
[GRAPHIC] [TIFF OMITTED] TP13JY09.151

    Because of the comparatively small amount of MFAS/HFAS sonar 
training the Navy has only been conducting offshore in the NWTRC, the 
fact that they have not been monitoring pursuant to those activities to 
date, and because of the overall data gap regarding the effects MFAS/
HFAS has on marine mammals, not a lot is known regarding how marine 
mammals in the NWTRC will respond to MFAS/HFAS (with the exception of 
the SHOUP incident mentioned previously--but since then no sonar 
training has been conducted in the Inshore area). Twelve monitoring 
reports from the Southern California Range Complex for major training 
exercises indicate that watchstanders have observed no instances of 
obvious behavioral disturbance in the more than 704 marine mammal 
sightings of 7,435 animals (9,000+ hours of effort, though only 4 of 
the 12 reports reported the total number of hours of observation). One 
cannot conclude from these results that marine mammals were not 
harassed from MFAS/HFAS, as a portion of animals within the area of 
concern were not seen (especially those more cryptic, deep-diving 
species, such as beaked whales or Kogia spp.) and some of the non-
biologist watchstanders might not be well-qualified to characterize 
behaviors. However, one can say that the animals that were observed did 
not respond in any of the obviously more

[[Page 33886]]

severe ways, such as panic, aggression, or anti-predator response.
    In addition to the monitoring that will be required pursuant to 
these regulations and any corresponding LOAs, which is specifically 
designed to help us better understand how marine mammals respond to 
sound, the Navy and NMFS have developed, funded, and begun conducting a 
controlled exposure experiment with beaked whales in the Bahamas. 
Separately, the Navy and NMFS conducted an opportunistic tagging 
experiment with beaked whales in the area of the 2008 Rim of the 
Pacific training exercises in the HRC.

Diel Cycle

    As noted previously, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing on a diel cycle (24-hr 
cycle). Substantive behavioral reactions to noise exposure (such as 
disruption of critical life functions, displacement, or avoidance of 
important habitat) are more likely to be significant if they last more 
than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than one day 
and not recurring on subsequent days is not considered particularly 
severe unless it could directly affect reproduction or survival 
(Southall et al., 2007).
    In the previous section, we discussed the fact that potential 
behavioral responses to MFAS/HFAS that fall into the category of 
harassment could range in severity. By definition, the takes by 
behavioral harassment involve the disturbance of a marine mammal or 
marine mammal stock in the wild by causing disruption of natural 
behavioral patterns (such as migration, surfacing, nursing, breeding, 
feeding, or sheltering) to a point where such behavioral patterns are 
abandoned or significantly altered. These reactions would, however, be 
more of a concern if they were expected to last over 24 hours or be 
repeated in subsequent days. As mentioned previously, 65 ASW exercises 
with a duration of 1.5 hours are planned annually for the NWTRC. 
Additionally, vessels with hull-mounted active sonar are typically 
moving at speeds of 10-12 knots, which would make it unlikely that the 
same animal could remain in the immediate vicinity of the ship for the 
entire duration of the exercise. Animals are not expected to be exposed 
to MFAS/HFAS at levels or for a duration likely to result in a 
substantive response that would then be carried on for more than one 
day or on successive days. With the exception of SINKEXs, the planned 
explosive exercises are also of a short duration (1-6 hours). Although 
explosive exercises may sometimes be conducted in the same general 
areas repeatedly, because of their short duration and the fact that 
they are in the open ocean and animals can easily move away makes it 
similarly unlikely that animals would be exposed for long, continuous 
amounts of time. Although SINKEXs may last for up to 48 hours, only 2 
are planned annually, they are stationary and conducted in deep, open 
water (where fewer marine mammals would typically be expected to be 
randomly encountered), and they have a rigorous monitoring and shutdown 
protocol, all of which make it unlikely that individuals would be 
exposed to the exercise for extended periods or in consecutive days.

TTS

    NMFS and the Navy have estimated that some individuals of some 
species of marine mammals may sustain some level of TTS from MFAS/HFAS. 
As mentioned previously, TTS can last from a few minutes to days, be of 
varying degree, and occur across various frequency bandwidths, all of 
which determine the severity of the impacts on the affected individual, 
which can range from minor to more severe. Table 8 indicates the 
estimated number of animals that might sustain TTS from exposure to 
MFAS/HFAS. The TTS sustained by an animal is primarily classified by 
three characteristics:
    <bullet> Frequency--Available data (of mid-frequency hearing 
specialists exposed to mid to high frequency sounds-Southall et al., 
2007) suggest that most TTS occurs in the frequency range of the source 
up to one octave higher than the source (with the maximum TTS at \1/2\ 
octave above). The more MF powerful sources used (the two hull-mounted 
MFAS sources and the DICASS sonobuoys) have center frequencies between 
3.5 and 8 kHz and the other unidentified MF sources are, by definition, 
less than 10 kHz, which suggests that TTS induced by any of these MF 
sources would be in a frequency band somewhere between approximately 2 
and 20 kHz. There are fewer hours of HF source use and the sounds would 
attenuate more quickly, plus they have lower source levels, but if an 
animal were to incur TTS from these sources, it would cover a higher 
frequency range (sources are between 20 and 100 kHz, which means that 
TTS could range up to 200 kHz, however, HF systems are typically used 
less frequently and for shorter time periods than surface ship and 
aircraft MF systems, so TTS from these sources is even less likely). 
TTS from explosives would be broadband. Tables 5a and 5b summarize the 
vocalization data for each species.
    <bullet> Degree of the shift (i.e., how many dB is the sensitivity 
of the hearing reduced by)--generally, both the degree of TTS and the 
duration of TTS will be greater if the marine mammal is exposed to a 
higher level of energy (which would occur when the peak dB level is 
higher or the duration is longer). The threshold for the onset of TTS 
(> 6 dB) is 195 dB (SEL), which might be received at distances of up to 
140 m from the most powerful MFAS source, the AN/SQS-53 (the maximum 
ranges to TTS from other sources would be less, as modeled for NWTRC). 
An animal would have to approach closer to the source or remain in the 
vicinity of the sound source appreciably longer to increase the 
received SEL, which would be difficult considering the watchstanders 
and the nominal speed of an active sonar vessel (10-12 knots). Of all 
TTS studies, some using exposures of almost an hour in duration or up 
to 217 SEL, most of the TTS induced was 15 dB or less, though Finneran 
et al., (2007) induced 43 dB of TTS with a 64-sec exposure to a 20 kHz 
source (MFAS emits a 1-s ping 2 times/minute).
    <bullet> Duration of TTS (Recovery time)--See above. Of all TTS 
laboratory studies, some using exposures of almost an hour in duration 
or up to 217 SEL, almost all recovered within 1 day (or less, often in 
minutes), though in one study (Finneran et al., (2007)), recovery took 
4 days.
    Based on the range of degree and duration of TTS reportedly induced 
by exposures to non-pulse sounds of energy higher than that to which 
free-swimming marine mammals in the field are likely to be exposed 
during MFAS/HFAS training exercises in NWTRC, it is unlikely that 
marine mammals would ever sustain a TTS from MFAS that alters their 
sensitivity by more than 20 dB for more than a few days (and the 
majority would be far less severe because of short duration of the 
exercises, the speed of a typical vessel, and the fact that only 1 MFAS 
source is in use at once). 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 is impeded. 
Additionally (see Tables 5a and 5b), 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

[[Page 33887]]

sustained because the higher source level and slower attenuation make 
it more likely that an animal would be exposed to a higher level) would 
not usually span the entire frequency range of one vocalization type, 
much less span all types of vocalizations. If impaired, marine mammals 
would typically be aware of their impairment and implement behaviors to 
compensate for it (see Communication Impairment Section), though these 
compensations may incur energetic costs.

Acoustic Masking or Communication Impairment

    Table 5 is also informative regarding the nature of the masking or 
communication impairment that could potentially occur from MFAS (again, 
center frequencies are 3.5 and 7.5 kHz for the two types of hull-
mounted active sonar). However, masking only occurs during the time of 
the signal (and potential secondary arrivals of indirect rays), versus 
TTS, which occurs continuously for its duration. Standard MFAS pings 
last on average one second and occur about once every 24-30 seconds for 
hull-mounted sources. For the sources for which we know the pulse 
length, most are significantly shorter than hull-mounted active sonar, 
on the order of several microseconds to 10s of microseconds. For hull-
mounted active sonar, though some of the vocalizations that marine 
mammals make are less than one second long, there is only a 1 in 24 
chance that they would occur exactly when the ping was received, and 
when vocalizations are longer than one second, only parts of them are 
masked. Alternately, when the pulses are only several microseconds 
long, the majority of most animals' vocalizations would not be masked. 
Masking effects from MFAS/HFAS are expected to be minimal. If masking 
or communication impairment were to occur briefly, it would be in the 
frequency range of MFAS, which overlaps with some marine mammal 
vocalizations, however, it would likely not mask the entirety of any 
particular vocalization or communication series because the pulse 
length, frequency, and duty cycle of the MFAS/HFAS signal does not 
perfectly mimic the characteristics of any marine mammal's 
vocalizations.

PTS, Injury, or Mortality

    The Navy's model estimated that one Pacific harbor seal would be 
exposed to levels of MFAS/HFAS that would result in PTS. This estimate 
does not take into consideration either the mitigation measures, the 
likely avoidance behaviors of some of the animals exposed, the distance 
from the sonar dome of a surface vessel within which an animal would 
have to be exposed to incur PTS (10 m), and the nominal speed of a 
surface vessel engaged in ASW exercises. NMFS believes that many marine 
mammals would deliberately avoid exposing themselves to the received 
levels of active sonar necessary to induce injury by moving away from 
or at least modifying their path to avoid a close approach. 
Additionally, in the unlikely event that an animal approaches the sonar 
vessel at a close distance, NMFS believes that the mitigation measures 
(i.e., shutdown/powerdown zones for MFAS/HFAS) would typically ensure 
that animals would not be exposed to injurious levels of sound. As 
discussed previously, the Navy utilizes both aerial (when available) 
and passive acoustic monitoring (during all ASW exercises) in addition 
to watchstanders on vessels to detect marine mammals for mitigation 
implementation and indicated that they are capable of effectively 
monitoring a 1,000-meter (1,093-yd) safety zone at night using night 
vision goggles, infrared cameras, and passive acoustic monitoring.
    If a marine mammal is able to approach a surface vessel within the 
distance necessary to incur PTS, the likely speed of the vessel 
(nominal 10-12 knots) would make it very difficult for the animal to 
remain in range long enough to accumulate enough energy to result in 
more than a mild case of PTS. As mentioned previously and in relation 
to TTS, the likely consequences to the health of an individual that 
incurs PTS can range from mild to more serious dependent upon the 
degree of PTS and the frequency band it is in, and many animals are 
able to compensate for the shift, although it may include energetic 
costs. While NMFS believes it is very unlikely that a harbor seal will 
incur PTS from exposure to MFAS/HFAS, seals may be difficult to detect 
at times and the Navy has requested authorization to take one by Level 
A Harasssment and therefore, NMFS has considered this possibility in 
our analysis.
    The Navy's model estimated that 14 total animals would be exposed 
to explosive detonations at levels that could result in injury (1 fin 
whale, 1 blue whale, 1 sperm whale, 3 Dall's porpoise, 1 harbor 
porpoise, 1 northern right whale dolphin, 2 short-beaked common 
dolphins, 2 northern elephant seals, 1 northern fur seal, and 1 Steller 
sea lion), and that 0 would be exposed to levels that would result in 
death--however, those estimates do not consider mitigation measures. 
Because of the surveillance conducted prior to and during the 
exercises, the associated exclusion zones (see table 3 and the 
Mitigation section), and the distance within which the animal would 
have to be from the explosion, NMFS does not think it likely that any 
animals (especially these species, which are either large individuals 
or large gregarious groups) will be exposed to levels of sound or 
pressure from explosives that will result in injury. However, an 
authorization for Level A take of these individuals allows the Navy to 
remain in compliance in the unlikely event that animals go undetected 
and enter an area with injurious energy or pressure levels, and 
therefore NMFS has considered this possibility in our analysis. Injury 
incurred at these levels could (based on the data the thresholds are 
derived from) take the form of PTS (discussed above), tympanic membrane 
rupture, or slight lung injury.
    As discussed previously, marine mammals could potentially respond 
to MFAS at a received level lower than the injury threshold in a manner 
that indirectly results in the animals stranding. The exact mechanisms 
of this potential response, behavioral or physiological, are not known. 
The naval exercises that have been associated with strandings in the 
past have typically had three or more vessels operating simultaneously, 
or in conjunction with one another, whereas the ASW exercises in the 
NWTRC only utilize one surface vessel sonar source at a time. Also, 
past sonar-associated strandings have involved constricted channels, 
semi-enclosed areas, and/or steep bathymetry--the sorts of features 
present in the Inshore area of the NWTRC; however, no ASW exercises 
will be conducted in the Inshore area. Last, even if the physical 
features that may contribute to a stranding (not all of which are 
known) were present in the NWTRC, it is unlikely that they would co-
occur in time and space given the nature of the exercises, e.g., low 
number and short duration of the planned exercises and no multi-vessel 
ASW exercises over an extended period of time.

60 Years of Navy Training Exercises Using MFAS/HFAS in the NWTRC Range 
Complex

    The Navy has been conducting MFAS/HFAS training exercises in the 
NWTRC Range Complex for over 60 years. Although monitoring specifically 
in conjunction with training exercises to determine the effects of 
active sonar and explosives on marine mammals has not been conducted by 
the Navy in the past

[[Page 33888]]

in the NWTRC and the symptoms indicative of potential acoustic trauma 
were not as well recognized prior to the mid-nineties, people have been 
collecting stranding data in the NWTRC Range Complex for approximately 
30 years. Though not all dead or injured animals are expected to end up 
on the shore (some may be eaten or float out to sea), one might expect 
that if marine mammals were being harmed by the Navy training exercises 
with any regularity, more evidence would have been detected over the 
30-yr period.

Species-Specific Analysis

    In the discussions below, the ``acoustic analysis'' refers to the 
Navy's analysis, which includes the use of several models and other 
applicable calculations as described in the Estimates of Potential 
Marine Mammal Exposure section. The numbers predicted by the ``acoustic 
analysis'' are based on a uniform and stationary distribution of marine 
mammals and do not take into consideration the implementation of 
mitigation measures or potential avoidance behaviors of marine mammals, 
and therefore, are likely overestimates of potential exposures to the 
indicated thresholds (PTS, TTS, behavioral harassments).

Blue Whale (MMPA Depleted/ESA-Listed)

    Acoustic analysis predicts that 19 exposures of blue whales to 
MFAS/HFAS or explosive detonations at sound or pressure levels likely 
to result in Level B harassment will occur. This estimate represents 
the total number of takes and not necessarily the number of individuals 
taken, as a single individual may be taken multiple times over the 
course of a year. These Level B takes are anticipated to be primarily 
in the form of behavioral disturbance as described in the Definition of 
Harassment: Level B Harassment section, although one TTS take is 
estimated from explosive exposure and proposed to be authorized. It is 
unlikely that any blue whales will incur TTS because of: (1) The 
distance within which they would have to approach the explosive source; 
and (2) the likelihood that Navy monitors would, during pre- or during 
exercises monitoring, detect these large animals prior to an approach 
within this distance and require a delay of the exercise. Navy lookouts 
will likely detect a group of blue whales given their large size, 
average group size (2-3), and pronounced vertical blow.
    Additionally, the Navy's acoustic analysis predicted that 1 blue 
whale would be exposed to injurious levels of energy or pressure from 
exposure to explosive detonations. Because of the lengthy pre-
monitoring, the size of the animal, and the pronounced blow, NMFS 
anticipates that the Navy watchstanders would likely detect blue whales 
in most instances and implement the mitigation to avoid exposure at 
injurious levels. Although NMFS does not anticipate Level A take of 
this species to occur, the Navy has requested Level A take 
authorization for this species to ensure MMPA compliance and NMFS will 
analyze the possibility of these effects. NMFS is currently engaged in 
an internal Section 7 consultation under the ESA and the outcome of 
that consultation will further inform our final decision.
    Blue whales in the NWTRC belong to the Eastern North Pacific stock, 
which may be increasing in number. The best population estimate for 
this stock is 1,866. Blue whales are known to feed in the southern part 
of the NWTRC in the summer. Relative to the population size, this 
activity is anticipated to result only in a limited number of level B 
harassment takes. The blue whale's large size and detectability makes 
it unlikely that these animals would be exposed to the higher energy or 
pressure expected to result in more severe effects either during their 
selected feeding times or otherwise. The NWTRC activities are not 
expected to occur in an area/time of specific importance for 
reproduction, feeding, or other known critical behaviors. Consequently, 
the activities are not expected to adversely impact rates of 
recruitment or survival of blue whales. Based on the general 
information contained in the Negligible Impact Analysis section and 
this stock-specific summary of the effects of the takes, NMFS has 
preliminarily determined that the Navy's specified activities will have 
a negligible impact on this stock.

Fin Whale (MMPA Depleted/ESA-Listed)

    Acoustic analysis indicates that up to 122 exposures of fin whales 
to sound levels likely to result in Level B harassment (2 from TTS) may 
result from MFAS/HFAS. This estimate represents the total number of 
takes and not necessarily the number of individuals taken, as a single 
individual may be taken multiple times over the course of a year. These 
Level B takes are anticipated to primarily be in the form of behavioral 
harassment as described in the Definition of Harassment: Level B 
Harassment section. Although 2 of the modeled Level B Harassment takes 
were predicted to be in the form of TTS from MFAS/HFAS, NMFS believes 
it is unlikely that any fin whales will incur TTS because of the 
distance within which they would have to approach the MFAS source 
(approximately 140 m for the most powerful source for TTS), the fact 
that many animals will likely avoid active sonar sources to some 
degree, and the likelihood that Navy monitors would detect these 
animals prior to an approach within this distance and implement active 
sonar powerdown or shutdown. Navy lookouts will likely detect a group 
of fin whales because of their large size, mean group size (3), and 
pronounced blow.
    Acoustic analysis also predicted that 19 Level B Harassment takes 
from explosives would occur (12 sub-TTS, 7 TTS). For the same reasons 
listed above, NMFS anticipates that the Navy watchstanders would likely 
detect these species and implement the mitigation to avoid exposure. 
However, the range to TTS for a few of the larger explosives is larger 
than the associated exclusion zones for BOMBEX or SINKEX (see Table 3), 
and therefore NMFS anticipates that TTS takes of a fin whales might 
result from explosive detonations.
    Additionally, the Navy's acoustic analysis predicted that 1 fin 
whale would be exposed to injurious levels of energy or pressure. 
Because of the lengthy pre-monitoring, the size of the animal, and the 
pronounced blow, NMFS anticipates that the Navy watchstanders would 
likely detect fin whales in most instances and implement the mitigation 
to avoid exposure at injurious levels. Although NMFS does not 
anticipate Level A take of this species to occur, the Navy has 
requested Level A take authorization for this species to ensure MMPA 
compliance and NMFS will analyze the possibility of these effects. NMFS 
is currently engaged in an internal Section 7 consultation under the 
ESA and the outcome of that consultation will further inform our final 
decision.
    Fin whales in the NWTRC belong to the California/Oregon/Washington 
stock. The best population estimate for this stock is 3454, which may 
be increasing. Relative to the population size, this activity is 
anticipated to result only in a limited number of level B harassment 
takes. The NWTRC activities are not expected to occur in an area/time 
of specific importance for reproductive, feeding, or other known 
critical behaviors. Consequently, the activities are not expected to 
adversely impact rates of recruitment or survival of fin whales. Based 
on the general information contained in the Negligible Impact Analysis 
section and this stock-specific summary of the effects of the takes, 
NMFS has preliminarily determined that the Navy's specified

[[Page 33889]]

activities will have a negligible impact on this stock.

Sei Whale (MMPA Depleted/ESA-Listed)

    Acoustic analysis predicts that 1 sei whale will be behaviorally 
harassed by exposure to MFAS/HFAS. Sei whales in the NWTRC belong to 
the Eastern North Pacific stock. The best population estimate for this 
stock is 43, which may be increasing. The sei whales' large size and 
detectability makes it unlikely that these animals would be exposed to 
the higher energy or pressure expected to result in more severe 
effects. No areas of specific importance for reproduction or feeding of 
sei whales have been identified in the NWTRC. Relative to the 
population size, this activity is anticipated to result only in a 
limited number of level B harassment takes. The NWTRC activities are 
not expected to occur in an area/time of specific importance for 
reproductive, feeding, or other known critical behaviors. Consequently, 
the activities are not expected to adversely impact rates of 
recruitment or survival of sei whales. Based on the general information 
contained in the Negligible Impact Analysis section and this stock-
specific summary of the effects of the takes, NMFS has preliminarily 
determined that the Navy's specified activities will have a negligible 
impact on this stock.

Humpback Whale (MMPA Depleted/ESA-Listed)

    Acoustic analysis predicts that 13 humpback whales will be 
behaviorally harassed by exposure to MFAS/HFAS. No humpback whales are 
expected to be taken as a result of exposure to explosive detonations. 
Humpback whales in the NWTRC belong to the Eastern North Pacific stock. 
The best population estimate for this stock is 1396, which is 
increasing. The humpback whales' large size, gregarious nature, and 
detectability makes it unlikely that these animals would be exposed to 
the higher energy or pressure expected to result in more severe 
effects. No areas of specific importance for reproduction or feeding of 
humpbacks have been identified in the NWTRC. Relative to the population 
size, this activity is anticipated to result only in a limited number 
of level B harassment takes. The NWTRC activities are not expected to 
occur in an area/time of specific importance for reproductive, feeding, 
or other known critical behaviors. Consequently, the activities are not 
expected to adversely impact rates of recruitment or survival of 
humpback whales. Based on the general information contained in the 
Negligible Impact Analysis section and this stock-specific summary of 
the effects of the takes, NMFS has preliminarily determined that the 
Navy's specified activities will have a negligible impact on this 
stock.

Gray Whale

    Acoustic analysis predicts that 4 gray whales will be behaviorally 
harassed by exposure to MFAS/HFAS. No gray whales are expected to be 
taken as a result of exposure to explosive detonations. Gray whales in 
the NWTRC belong to the Eastern North Pacific stock, which is 
increasing in number. The best population estimate for this stock is 
18178. The gray whales' large size and detectability makes it unlikely 
that these animals would be exposed to the higher energy or pressure 
expected to result in more severe effects. There is a well-defined 
north-south migratory path through the NWTRC and a known aggregation of 
gray whales (Pacific Coast Feeding Aggregation (PCFA)) that feeds along 
the Pacific coast between southeastern Alaska and southern California 
throughout the summer and fall. Relative to the population size, 
however, this activity is anticipated to result only in a very limited 
number of level B harassment takes and, consequently, the activities 
are not expected to adversely impact rates of recruitment or survival 
of gray whales. Based on the general information contained in the 
Negligible Impact Analysis section and this stock-specific summary of 
the effects of the takes, NMFS has preliminarily determined that the 
Navy's specified activities will have a negligible impact on this 
stock.

Minke Whale

    Acoustic analysis predicts that 9 minke whales will be behaviorally 
harassed by exposure to MFAS/HFAS. No minke whales are expected to be 
taken as a result of exposure to explosive detonations. Minke whales in 
the NWTRC belong to the California/Oregon/Washington stock. The best 
population estimate for this stock is 898. The whales' size and 
detectability makes it unlikely that these animals would be exposed to 
the higher energy or pressure expected to result in more severe 
effects. Minke whales appear to establish home ranges in the Inshore 
Area and have been documented feeding in several areas within the 
Inshore Areas, however, no activities expected to result in the take of 
marine mammals will occur in the Inshore Area, so these behaviors 
should not be negatively impacted in that area. Relative to the 
population size, this activity is anticipated to result only in a 
limited number of level B harassment takes. The NWTRC activities are 
not expected to occur in an area/time of specific importance for 
reproductive, feeding, or other known critical behaviors. Consequently, 
the activities are not expected to adversely impact rates of 
recruitment or survival of minke whales. Based on the general 
information contained in the Negligible Impact Analysis section and 
this stock-specific summary of the effects of the takes, NMFS has 
preliminarily determined that the Navy's specified activities will have 
a negligible impact on this stock.

Sperm Whale (MMPA Depleted/ESA-Listed)

    Acoustic analysis predicts that up to 101 exposures of sperm whales 
to MFAS/HFAS at energy levels likely to result in Level B harassment 
may occur. This estimate represents the total number of Level B takes 
and not necessarily the number of individuals taken, as a single 
individual may be taken multiple times over the course of a year. These 
Level B takes are anticipated to primarily be in the form of behavioral 
disturbance as described in the Definition of Harassment: Level B 
Harassment section. Two of the modeled Level B Harassment takes were 
predicted to be in the form of TTS.
    As indicated in Table 5, some (but not all) sperm whale 
vocalizations might overlap with the MFAS/HFAS TTS frequency range (2-
20 kHz), which could potentially temporarily decrease an animal's 
sensitivity to the calls of conspecifics or returning echolocation 
signals. However, as noted previously, NMFS does not anticipate TTS of 
a long duration or severe degree to occur as a result of exposure to 
MFAS/HFAS. No sperm whales are predicted to be exposed to MFAS/HFAS 
sound levels associated with PTS or injury.
    Acoustic analysis also predicted that 23 sperm whales would be 
exposed to sound or pressure from explosives at levels expected to 
result in Level B Harassment (10 from TTS). Additionally, the Navy's 
acoustic analysis predicted that 1 whale would be exposed to injurious 
levels of energy or pressure. Because of the lengthy pre-monitoring and 
the size of the animal, NMFS anticipates that the Navy watchstanders 
would likely detect sperm whales in most instances and implement the 
mitigation measures to avoid exposure at injurious levels. Although 
NMFS does not anticipate sperm whales to experience Level A Harassment, 
the Navy has requested Level A take authorization for this species to 
ensure MMPA compliance in the unlikely event that an animal is

[[Page 33890]]

exposed to injurious pressures from an explosive detonation and NMFS 
has analyzed the possibility of these effects. NMFS is currently 
engaged in an internal Section 7 consultation under the ESA and the 
outcome of that consultation will further inform our final decision. No 
areas of specific importance for reproduction or feeding of sperm 
whales have been identified in the NWTRC.
    Relative to the population size, this activity is anticipated to 
result only in a limited number of Level B harassment takes. 
Additionally, the NWTRC activities are not expected to occur in an 
area/time of specific importance for reproductive, feeding, or other 
known critical behaviors. Consequently, the activities are not expected 
to adversely impact rates of recruitment or survival of sperm whales. 
Based on the general information contained in the Negligible Impact 
Analysis section and this stock-specific summary of the effects of the 
takes, NMFS has preliminarily determined that the Navy's specified 
activities will have a negligible impact on this stock.

Killer Whale (Southern Resident Is MMPA Depleted/ESA-Listed)

    Due to the difficulty in determining particular stocks of killer 
whales in the wild, all stocks of killer whales were combined for 
modeling exposures, and therefore the modeled takes could be applied to 
any combination of the three stocks. When observed offshore, the 
determination of a particular whale to either a transient, offshore, or 
a resident is often difficult. For this reason, all killer whales are 
considered to be part of the southern resident stock for analysis of 
effect. The southern resident stock of killer whales is depleted under 
the MMPA and listed under the ESA.
    Acoustic analysis predicts that 13 killer whales will be 
behaviorally harassed by exposure to MFAS/HFAS. The best population 
estimate for the southern resident killer whale stock is 89. There was 
an increase in the overall population from 2002-2007, however the 
population declined in 2008 with 85 southern resident killer whales 
counted. Two additional whales have been reported missing since the 
2008 census count. The whale's size and detectability makes it unlikely 
that these animals would be exposed to the higher energy or pressure 
expected to result in more severe effects. As mentioned previously, 
there is designated critical habitat for southern resident killer 
whales in the Inshore Area; however, no sonar exercises and 4 very 
small detonations (2.5-lb), which are not expected to result in the 
take of marine mammals, are planned to occur in the Inshore area 
annually. Southern resident killer whales spend the majority of their 
time in the Inshore Area from May/June through October/November, 
although they do make multi-day trips to the outer coast. Alternately, 
all of the Navy's sonar use is in the Offshore Area, occurring 
uniformly throughout the year.
    Of note, the vocalizations of killer whales fall directly into the 
frequency range in which TTS would be incurred from the MFAS sources 
used in NWTRC for ASW exercises, so it is fortunate that the Navy is 
conducting limited ASW exercises in the NWTRC and that killer whales 
are predominantly situated in the Inshore area when ASW exercises are 
being conducted. Killer whales produce a wide-variety of clicks and 
whistles, but most social sounds are pulsed, with frequencies ranging 
from 0.5 to 25 kHz (dominant frequency range: 1 to 6 kHz) (Thomson and 
Richardson, 1995). Echolocation clicks indicate source levels ranging 
from 195 to 224 dB re 1 [mu]Pa-m peak-to-peak, dominant frequencies 
ranging from 20 to 60 kHz, and durations of about 0.1 sec (Au et al., 
2004). Source levels associated with social sounds have been calculated 
to range from 131 to 168 dB re 1 [mu]Pa-m and vary with vocalization 
type (Veirs, 2004).
    Southern resident killer whales are very vocal, making calls during 
all types of behavioral states. Acoustic studies of resident killer 
whales in the Pacific Northwest have found that there are dialects in 
their highly stereotyped, repetitive discrete calls, which are group-
specific and shared by all group members (Ford, 1991, 2002b). These 
dialects likely are used to maintain group identity and cohesion, and 
may serve as indicators of relatedness that help prevent inbreeding 
between closely related whales (Ford, 1991, 2002b). Dialects have been 
documented in northern Norway (Ford, 2002a) and southern Alaska killer 
whales populations (Yurk et al., 2002) and likely occur in other 
regions.
    Both behavioral and auditory brainstem response techniques indicate 
killer whales can hear a frequency range of 1 to 100 kHz and are most 
sensitive at 20 kHz. This is one the lowest maximum-sensitivity 
frequencies known among toothed whales (Szymanski et al., 1999).
    Population estimates for the Offshore and Transient killer whale 
stocks are 422 and 346, respectively. Relative to the population size, 
this activity is anticipated to result only in a limited number of 
level B harassment takes. The NWTRC activities are not expected to 
occur in an area/time of specific importance for reproductive, feeding, 
or other known critical behaviors. Consequently, the activities are not 
expected to adversely impact rates of recruitment or survival of killer 
whales. Based on the general information contained in the Negligible 
Impact Analysis section and this stock-specific summary of the effects 
of the takes, NMFS has preliminarily determined that the Navy's 
specified activities will have a negligible impact on these stocks.

Pygmy and Dwarf Sperm Whale

    Acoustic analysis predicts that 4 pygmy or dwarf sperm whales will 
be behaviorally harassed by exposure to MFAS/HFAS or explosives. Dwarf 
and pygmy sperm whales in the NWTRC belong to the California/Oregon/
Washington stocks. There are no population estimates for these stocks, 
however, this activity is anticipated to result only in a very limited 
number of level B harassment takes. The NWTRC activities are not 
expected to occur in an area/time of specific importance for 
reproductive, feeding, or other known critical behaviors. Consequently, 
the activities are not expected to adversely impact rates of 
recruitment or survival of pygmy and dwarf sperm whales. Based on the 
general information contained in the Negligible Impact Analysis section 
and this stock-specific summary of the effects of the takes, NMFS has 
preliminarily determined that the Navy's specified activities will have 
a negligible impact on this stock.

Beaked Whales

    Acoustic analysis predicts that 12 Baird's beaked whales, 14 
Cuvier's beaked whales, and 14 Mesoplodont sp. will be taken by Level B 
harassment by exposure to MFAS/HFAS or explosives (1, 2, and 1 take 
each from explosives, relatively). Beaked whales in the NWTRC belong to 
the California/Oregon/Washington stocks. Census data and life history 
are too limited to suggest a population trend for individual species of 
Mesoplodont whales. Until better methods are developed for 
distinguishing the different mesoplodont species from one another, the 
management unit is defined to include all mesoplodont populations. The 
best population estimate for these stocks is 313, 2171, and 1024, 
respectively. Although no areas of specific importance for reproduction 
or feeding of beaked whales have been identified in the NWTRC, beaked 
whales are generally found in deep waters over the continental slope, 
oceanic seamounts, and areas with submarine escarpments (very seldom

[[Page 33891]]

over the continental shelf). Relative to the population size, this 
activity is anticipated to result only in a limited number of level B 
harassment takes. Consequently, the activities are not expected to 
adversely impact rates of recruitment or survival of beaked whales. 
Based on the general information contained in the Negligible Impact 
Analysis section and this stock-specific summary of the effects of the 
takes, NMFS has preliminarily determined that the Navy's specified 
activities will have a negligible impact on these stocks.

Short-Finned Pilot Whale

    Acoustic analysis predicts that 2 pilot whales will be behaviorally 
harassed by exposure to MFAS/HFAS or explosives. Pilot whales are rare 
in the NWTRC and belong to the California/Oregon/Washington stocks. The 
best population estimate for these stocks is 245. Relative to the 
population size, this activity is anticipated to result only in a 
limited number of level B harassment takes. The NWTRC activities are 
not expected to occur in an area/time of specific importance for 
reproductive, feeding, or other known critical behaviors. Consequently, 
the activities are not expected to adversely impact rates of 
recruitment or survival of short-finned pilot whales. Based on the 
general information contained in the Negligible Impact Analysis section 
and this stock-specific summary of the effects of the takes, NMFS has 
preliminarily determined that the Navy's specified activities will have 
a negligible impact on these stocks.

Dolphins and Porpoises

    The acoustic analysis predicts that the following numbers of Level 
B behavioral harassments of the associated species will occur: 4725 
Dall's Porpoises, 119162 harbor porpoises, 1256 short-beaked common 
dolphin, 1256 short-beaked common dolphin, 734 northern right whale 
dolphin, 555 Pacific white-sided dolphin, and 40 striped dolphin. This 
estimate represents the total number of exposures and not necessarily 
the number of individuals exposed, as a single individual may be 
exposed multiple times over the course of a year. No bottlenose 
dolphins are expected to be taken based on the Navy's acoustic 
analysis.
    Although a portion (147 Dall's Porpoises, 45 harbor porpoises, 42 
short-beaked common dolphin,18 northern right whale dolphin, 23 Pacific 
white-sided dolphin, and 1 striped dolphin) of the modeled Level B 
Harassment takes for all of these species is predicted to be in the 
form of TTS from MFAS, NMFS believes it is unlikely that all of the 
individuals estimated will incur TTS because of the distance within 
which they would have to approach the active sonar source 
(approximately 140 m for the most powerful source), the fact that many 
animals will likely avoid active sonar sources to some degree, and the 
likelihood that Navy monitors would detect these animals prior to an 
approach within this distance and implement active sonar powerdown or 
shutdown. Navy lookouts will likely detect a group of dolphins given 
their relatively short dives, gregarious behavior, and large average 
group size. However, the Navy's proposed mitigation has a provision 
that allows the Navy to continue operation of MFAS if the animals are 
clearly bow-riding even after the Navy has initially maneuvered to try 
and avoid closing with the animals. Since these animals sometimes bow-
ride they could potentially be exposed to levels associated with TTS as 
they approach or depart from bow-riding. As mentioned above and 
indicated in Table 5, some dolphin vocalizations might overlap with the 
MFAS/HFAS TTS frequency range (2-20 kHz), which could potentially 
temporarily decrease an animal's sensitivity to the calls of 
conspecifics or returning echolocation signals. However, as noted 
previously, NMFS does not anticipate TTS of a long duration or severe 
degree to occur as a result of exposure to MFAS/HFAS.
    Acoustic analysis also predicted that 58 Dall's Porpoises, 5 harbor 
porpoises, 23 short-beaked common dolphin, 7 northern right whale 
dolphin, 3 Pacific white-sided dolphin, and 1 striped dolphin would be 
exposed to sound or pressure from explosives at levels expected to 
result in TTS. For the same reasons noted above, NMFS anticipates that 
the Navy watchstanders would likely detect these species and implement 
the mitigation to avoid exposure. However, the range to TTS for a few 
of the larger explosives is larger than the associated exclusion zones 
for BOMBEX, MISSILEX, or SINKEX (see Table 3), and therefore NMFS 
anticipates that TTS might not be entirely avoided during those 
exercises.
    Acoustic analysis also predicted that 3 Dall's porpoise, a harbor 
porpoise, 2 short-beaked dolphin, and one northern right whale dolphin 
might be exposed to sound or pressure from explosive detonations that 
would result in PTS or injury. For the same reasons listed above (group 
size, dive and social behavior), NMFS anticipates that the Navy 
watchstanders would detect these species and implement the mitigation 
measures to avoid exposure. In the case of all explosive exercises, the 
exclusion zones are 2-12 times larger than the estimated distance at 
which an animal would be exposed to injurious sounds or pressure waves.
    No areas of specific importance for reproduction or feeding for 
dolphins have been identified in the NWTRC. Table 4 shows the estimated 
abundance of the affected stocks of dolphins and porpoise.
    Of note, the number of harbor porpoises behaviorally harassed by 
exposure to MFAS/HFAS is higher than the other species (and, in fact, 
suggests that every member of the stock could potentially be taken by 
Level B harassment multiple times) because of the low Level B 
Harassment threshold, which essentially makes the ensonified area of 
effects significantly larger than for the other species. However, the 
fact that the threshold is a step function and not a curve (and 
assuming uniform density) means that the vast majority of the takes 
occur in the very lowest levels that exceed the threshold 
(approximately 80% of the takes are from exposures to 120 dB to 126 dB, 
and then approximately 80% of those takes are in the 126 dB to 132 dB 
range, etc.), which means that the anticipated effects are not expected 
to be severe.
    Based on the general information contained in the Negligible Impact 
Analysis section and this stock-specific summary of the effects of the 
takes, NMFS has preliminarily determined that the Navy's specified 
activities will have a negligible impact on these stocks.

Pinnipeds

    The Navy's acoustic analysis predicts that the following numbers of 
Level B harassments (from exposure to MFAS/HFAS or explosives) of the 
associated species will occur: 120 Steller sea lion, 1,365 Northern fur 
seal, 286 California sea lion, 378 northern elephant seals, and 586 
Pacific harbor seal. This estimate represents the total number of 
exposures and not necessarily the number of individuals exposed, as a 
single individual may be exposed multiple times over the course of a 
year.
    The model further predicted that of those Level B harassments 
listed above, 290 Pacific harbor seals and 1 northern fur seal, of the 
modeled Level B Harassment takes for all of these species were 
predicted to be in the form of TTS from MFAS exposure. NMFS believes it 
unlikely that northern fur seals, for which the TTS threshold is 206 dB 
SEL, will incur TTS because of the distance within which they would 
have to approach the MFAS source (approximately 37 m for the most

[[Page 33892]]

powerful source), the fact that many animals will likely avoid active 
sonar sources to some degree, and the likelihood that Navy monitors 
would detect these pinnipeds (because of the relatively short duration 
of their dives and their tendency to rest near the surface) prior to an 
approach within this distance and implement active sonar powerdown or 
shutdown. For harbor seals, more animals will be exposed to levels 
associated with TTS because of the lower threshold (183 SEL) that can 
be heard approximately 1,400 m from the highest powered AN/SQS-53C 
source. As mentioned above and indicated in Table 5, some pinniped 
vocalizations might overlap with the MFAS/HFAS TTS frequency range (2-
20 kHz), which could potentially temporarily decrease an animal's 
sensitivity to the calls of conspecifics or returning echolocation 
signals. However, as noted previously, NMFS does not anticipate TTS of 
a long duration or severe degree to occur as a result of exposure to 
MFAS/HFAS.
    The acoustic analysis also predicted that 1 Pacific harbor seal 
would be exposed to MFAS/HFAS sound levels that would result in Level A 
Harassment (PTS--injury). However, because of the distance within which 
they would have to approach the MFAS source (approximately 50 m for the 
most powerful source) and the fact that animals will likely avoid 
active sonar sources to some degree, NMFS does not believe that any 
animals will incur PTS or be otherwise injured by MFAS/HFAS. However, 
the Navy has requested authorization for one Level A take for Pacific 
harbor seals, so NMFS is considering it in our analysis.
    Acoustic analysis also predicted that of the total level B 
harassment takes listed in the first paragraph, 44 Northern fur seals, 
1 California sea lion, and 29 northern elephant seals would be exposed 
to sound or pressure from explosives at levels expected to result in 
TTS. For the same reasons listed above, NMFS anticipates that the Navy 
watchstanders would likely detect the majority of the individual 
northern elephant seals, northern fur seals, and California sea lions 
and implement the mitigation measures to avoid exposure. However, the 
range to TTS for a few of the larger explosives is larger than the 
associated exclusion zones for BOMBEX, MISSILEX, or SINKEX (see Table 
3), therefore NMFS anticipates that some TTS might not be avoided 
during those exercises. Acoustic analysis also predicted that 2 
northern elephant seals and 1 northern fur seal might be exposed to 
levels of sound or pressure from explosives that would result in PTS or 
other injury. NMFS anticipates that the Navy watchstanders would likely 
detect these species and implement the mitigation measures to avoid 
exposure. In the case of all explosive exercises, the exclusion zones 
are 2-12 times larger than the estimated distance at which an animal 
would be exposed to injurious sounds or pressure waves. However, an 
authorization for Level A take of these individuals allows the Navy to 
remain in compliance in the unlikely event that animals go undetected 
and enter an area with injurious energy or pressure levels, and 
therefore NMFS considers it in our analysis.
    Steller sea lions are MMPA depleted and ESA-listed with a 
decreasing population and they have designated critical habitat within 
the NWTRC. A small number, compared to the population estimate, are 
predicted to be taken by behavioral disturbance, and one potentially by 
injury, although NMFS does not anticipate this. Of note, the critical 
habitat (3 haulouts) has limitations for air approach distances and by 
sea approach distances and the Navy abides by these restrictions.
    Generally speaking, pinniped stocks in the NWTRC are thought to be 
stable or increasing. Based on the general information contained in the 
Negligible Impact Analysis section and this stock-specific summary of 
the effects of the takes, NMFS has preliminarily determined that the 
Navy's specified activities will have a negligible impact on these 
stocks.

Preliminary Determination

Negligible Impact

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and dependent 
upon the implementation of the mitigation and monitoring measures, NMFS 
preliminarily finds that the total taking from Navy training exercises 
utilizing MFAS/HFAS and underwater explosives in the NWTRC will have a 
negligible impact on the affected 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 that taking.

Subsistence Harvest of Marine Mammals

    NMFS has preliminarily determined that the issuance of 5-year 
regulations and subsequent LOAs for Navy training exercises in the 
NWTRC would not have an unmitigable adverse impact on the availability 
of the affected species or stocks for subsistence use for any Alaska 
Natives or Tribal member in the Northwest (e.g., Oregon, Washington, 
and northern California). Specifically, the Navy's exercises would not 
affect any Alaskan Native because the activities will be limited to 
waters off the coast of Washington, Oregon, and northern California, 
areas outside of traditional Alaskan Native hunting grounds. Moreover, 
there are no cooperative agreements in force under the MMPA or Whaling 
Convention Act that would allow for the subsistence harvest of marine 
mammals in waters off the Northwest coast. Consequently, this action 
would not result in an unmitigable adverse impact on the availability 
of the affected species or stocks for taking for subsistence uses in 
the Northwest.
    As noted above, NMFS will consider all comments, suggestions and/or 
concerns submitted by the public during the proposed rulemaking comment 
period to help inform our final decision, particularly with respect to 
our negligible impact determination and the proposed mitigation and 
monitoring measures.

ESA

    There are seven marine mammal species and one sea turtle species 
that are listed as endangered under the ESA with confirmed or possible 
occurrence in the study area: Humpback whale, sei whale, fin whale, 
blue whale, sperm whale, southern resident killer whale, Steller sea 
lion, and the leatherback sea turtle. The Navy has begun consultation 
with NMFS pursuant to section 7 of the ESA, and NMFS will also consult 
internally on the issuance of an LOA under section 101(a)(5)(A) of the 
MMPA for NWTRC activities. Consultation will be concluded prior to a 
determination on the issuance of the final rule and an LOA.

NEPA

    NMFS has participated as a cooperating agency on the Navy's Draft 
Environmental Impact Statement (DEIS) for the NWTRC, which was 
published on December 29, 2008. The Navy's DEIS is posted on NMFS' Web 
site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
NMFS intends to adopt the Navy's Final EIS (FEIS), if adequate and 
appropriate. Currently, we believe that the adoption of the Navy's FEIS 
will allow NMFS to meet its responsibilities under NEPA for the 
issuance of an LOA for NWTRC. If the Navy's FEIS is deemed not to be 
adequate, NMFS would supplement the

[[Page 33893]]

existing analysis to ensure that we comply with NEPA prior to the 
issuance of the final rule or LOA.

Classification

    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act.
    The Office of Management and Budget has determined that this 
proposed rule is 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 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities. The Regulatory Flexibility 
Act requires Federal agencies to prepare an analysis of a rule's impact 
on small entities whenever the agency is required to publish a notice 
of proposed rulemaking. However, a Federal agency may certify, pursuant 
to 5 U.S.C. 605(b), that the action will not have a significant 
economic impact on a substantial number of small entities. The Navy is 
the sole entity that will be affected by this rulemaking, not a small 
governmental jurisdiction, small organization or small business, as 
defined by the Regulatory Flexibility Act (RFA). Any requirements 
imposed by a Letter of Authorization issued pursuant to these 
regulations, and any monitoring or reporting requirements imposed by 
these regulations, will be applicable only to the Navy. NMFS does not 
expect the issuance of these regulations or the associated LOAs to 
result in any impacts to small entities pursuant to the RFA. Because 
this action, if adopted, would directly affect the Navy and not a small 
entity, NMFS concludes the action would not result in a significant 
economic impact on a substantial number of small entities.

    Dated: July 2, 2009.
James 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 M is added to part 218 to read as follows:
Subpart M--Taking and Importing Marine Mammals; U.S. Navy's Northwest 
Training Range Complex (NWTRC)
Sec.
218.110 Specified activity and specified geographical area.
218.111 [Reserved]
218.112 Permissible methods of taking.
218.113 Prohibitions.
218.114 Mitigation.
218.115 Requirements for monitoring and reporting.
218.116 Applications for Letters of Authorization.
218.117 Letters of Authorization.
218.118 Renewal of Letters of Authorization and adaptive management.
218.119 Modifications to Letters of Authorization.

Subpart M--Taking and Importing Marine Mammals; U.S. Navy's 
Northwest Training Range Complex (NWTRC)


Sec.  218.110  Specified activity and specified geographical area.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occur incidental to the activities 
described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the Offshore area of the Northwest Training Range 
Complex (NWTRC) (as depicted in Figure ES-1 in the Navy's Draft 
Environmental Impact Statement for NWTRC), which is bounded by 
48[deg]30' N. lat.; 130[deg]00' W. long.; 40[deg]00' N. lat.; and on 
the east by 124[deg]00' W. long or by the shoreline where the shoreline 
extends west of 124[deg]00' W. long (excluding the Strait of Juan de 
Fuca (east of 124[deg]40' W. long), which is not included in the 
Offshore area).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The use of the following mid-frequency active sonar (MFAS) 
sources, high frequency active sonar (HFAS) sources for U.S. Navy anti-
submarine warfare (ASW) and mine warfare (MIW) training, in the amounts 
and in the locations indicated below (<plus-minus>10%):
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 215 hours over the 
course of 5 years (an average of 43 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)--up to 330 hours over 
the course of 5 years (an average of 65 hours per year);
    (iii) SSQ-62 (Directional Command Activated Sonobuoy System 
(DICASS) sonobuoys)--up to 4430 sonobuoys over the course of 5 years 
(an average of 886 sonobuoys per year)
    (iv) MK-48 (heavyweight torpedoes)--up to 10 torpedoes over the 
course of 5 years (an average of 2 torpedoes per year);
    (v) AN/BQS-15 (mine detection and submarine navigational sonar)--up 
to 210 hours over the course of 5 years (an average of 42 hours per 
year);
    (vi) AN/SSQ-125 (AEER)--up to 745 buoys deployed over the course of 
5 years (total combined with the AN/SSQ-110A (IEER)) (an average of 149 
per year);
    (vii) Range Pingers--up to 900 hours over the course of 5 years (an 
average of 180 hours per year); and
    (viii) PUTR Uplink--up to 750 hours over the course of 5 years (an 
average of 150 hours per year).
    (2) The detonation of the underwater explosives indicated in this 
paragraph (c)(2)(i) conducted as part of the training events indicated 
in this paragraph (c)(2)(ii):
(i) Underwater Explosives
    (A) 5<gr-thn-eq> Naval Gunfire (9.5 lbs);
    (B) 76 mm rounds (1.6 lbs);
    (C) Maverick (78.5 lbs);
    (D) Harpoon (448 lbs);
    (E) MK-82 (238 lbs);
    (F) MK-48 (851 lbs);
    (G) Demolition Charges (2.5 lbs);
    (H) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs);
    (I) HARM;
    (J) Hellfire;
    (K) SLAM; and
    (L) GBU 10, 12, and 16.
(ii) Training Events
    (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 1700 
exercises over the course of 5 years (an average of 340 per year).
    (B) Bombing Exercises (BOMBEX)--up to 150 exercises over the course 
of 5 years (an average of 30 per year).
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year).
    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 60 exercises (total combined with the AN/SSQ-125A 
(AEER)) over the course of 5 years (an average of 12 per year).


Sec.  218.111  [Reserved]


Sec.  218.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.117 of this chapter, the Holder of

[[Page 33894]]

the Letter of Authorization (hereinafter ``Navy'') may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec.  218.110(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 Sec.  218.110(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.110(c) is limited to the following species, by 
the indicated method of take and the indicated number of times 
(estimated based on the authorized amounts of sound source operation):
(1) Level B Harassment (<plus-minus>10% of the Take Estimate Indicated 
Below)
(i) Mysticetes
    (A) Humpback whale (Megaptera novaeangliae)--75 (an average of 15 
annually);
    (B) Fin whale (Balaenoptera physalus)--720 (an average of 144 
annually);
    (C) Blue whale (Balaenoptera musculus)--95 (an average of 19 
annually);
    (D) Sei whale (Balaenoptera borealis)--5 (an average of 1 
annually);
    (E) Minke whale (Balaenoptera acutorostrata)--45 (an average of 9 
annually); and
    (F) Gray whale (Eschrichtius robustus)--20 (an average of 4 
annually).
(ii) Odontocetes
    (A) Sperm whales (Physeter macrocephalus)--635 (an average of 127 
annually);
    (B) Killer whale (Orcinus orca)--70 (an average of 14 annually);
    (C) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--20 
(an average of 94 annually);
    (D) Mesoplodont beaked whales--75 (an average of 15 annually);
    (E) Cuvier's beaked whales (Ziphius cavirostris)--70 (an average of 
14 annually);
    (F) Baird's beaked whales (Berardius bairdii)--65 (an average of 13 
annually);
    (G) Short-finned pilot whale (Globicephala macrorynchus)--10 (an 
average of 2 annually);
    (H) Striped dolphin (Stenella coeruleoalba)--400 (an average of 40 
annually);
    (I) Short-beaked common dolphin (Globicephala macrorhynchus)--6280 
(an average of 1256 annually);
    (J) Risso's dolphin (Grampus griseus)--500 (an average of 100 
annually);
    (K) Northern right whale dolphin (Lissodelphis borealis)--3705 (an 
average of 741 annually);
    (L) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--2855 
(an average of 571 annually);
    (M) Dall's porpoise (Phocoenoides dalli)--23780 (an average of 4752 
annually); and
    (N) Harbor Porpoise (Phocoena phocoena)--596370 (an average of 
119274 annually).
(ii) Pinnipeds
    (A) Northern elephant seal (Mirounga angustirostris)--1890 (an 
average of 378 annually);
    (B) Pacific harbor seal (Phoca vitulina)--2930 (an average of 586 
annually);
    (C) California sea lion (Zalophus californianus)--1430 (an average 
of 286 annually);
    (D) Northern fur seal (Callorhinus ursinus)--6825 (an average of 
1365 annually); and
    (E) Steller sea lion (Eumetopias jubatus)--600 (an average of 120 
annually).
(2) Level A Harassment
    (i) Fin whale--5 (an average of 1 annually);
    (ii) Blue Whale--5 (an average of 1 annually);
    (iii) Sperm whale--5 (an average of 1 annually);
    (iv) Dall's Porpoise--15 (an average of 3 annually);
    (v) Harbor Porpoise--5 (an average of 1 annually);
    (vi) Northern right whale dolphin--5 (an average of 1 annually);
    (vii) Short-beaked common dolphin--10 (an average of 2 annually);
    (viii) Northern elephant seal--10 (an average of 2 annually);
    (ix) Pacific harbor seal--5 (an average of 1 annually); and
    (x) Northern fur seal--5 (an average of 1 annually).


Sec.  218.113  Prohibitions.

    No person in connection with the activities described in Sec.  
218.110 may:
    (a) Take any marine mammal not specified in Sec.  218.112(c);
    (b) Take any marine mammal specified in Sec.  218.112(c) other than 
by incidental take as specified in Sec. Sec.  218.112(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec.  218.112(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec.  216.106 and 218.117 of this chapter.


Sec.  218.114  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified in Sec.  218.110(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 218.117 of this chapter must be implemented. These 
mitigation measures include, but are not limited to:
(1) Navy's General Maritime Measures for All Training at Sea
(i) Personnel Training (for All Training Types)
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. Following successful 
completion of this supervised training period, lookouts shall complete 
the Personal Qualification Standard Program, certifying that they have 
demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects). Personnel being trained as lookouts can 
be counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of protective measures if marine species 
are spotted.
(ii) Operating Procedures and Collision Avoidance
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel

[[Page 33895]]

training requirement and general marine species protective measures.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts will watch for 
and report to the OOD the presence of marine mammals.
    (D) On surface vessels equipped with a multi-function active 
sensor, pedestal mounted ``Big Eye'' (20x110) binoculars shall be 
properly installed and in good working order to assist in the detection 
of marine mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout 
Training Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and are dictated by environmental and other conditions 
(e.g., safety, weather).
    (I) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when it is reasonable to conclude that 
the course of the ship will likely result in a closing of the distance 
to the detected marine mammal.
(2) Navy's Measures for MFAS Operations
(i) Personnel Training (for MFAS Operations)
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    (D) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts 
shall complete the Personal Qualification Standard program, certifying 
that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
(ii) Lookout and Watchstander Responsibilities
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events shall, 
in addition to the three personnel on watch noted previously, have at 
all times during the exercise at least two additional personnel on 
watch as marine mammal lookouts.
    (C) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (D) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, 
discoloration) in the water may be indicative of a threat to the vessel 
and its crew or indicative of a marine species that may need to be 
avoided as warranted. Personnel on lookout and officers on watch on the 
bridge will have at least one set of binoculars available for each 
person to aid in the detection of marine mammals.
(iii) Operating Procedures (for MFAS Operations)
    (A) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (B) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (C) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (D) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (E) Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    (F) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) within or closing to 
inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or 
submarine shall limit active transmission levels to at least 6 decibels 
(dB) below normal operating levels.
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.

[[Page 33896]]

    (2) Should a marine mammal be detected within or closing to inside 
500 yds (457 m) of the sonar dome, active sonar transmissions shall be 
limited to at least 10 dB below the equipment's normal operating level. 
Ships and submarines shall continue to limit maximum ping levels by 
this 10-dB factor until the animal has been seen to leave the area, has 
not been detected for 30 minutes, or the vessel has transited more than 
2,000 yds (1829 m) beyond the location of the last detection.
    (3) Should the marine mammal be detected within or closing to 
inside 200 yds (183 m) of the sonar dome, active sonar transmissions 
shall cease. Sonar shall not resume until the animal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yds (1829 m) beyond the location of the last 
detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (5) If the need for power-down should arise as detailed in ``Safety 
Zones'' above, the Navy shall follow the requirements as though they 
were operating at 235 dB--the normal operating level (i.e., the first 
power-down will be to 229 dB, regardless of at what level above 235 dB 
active sonar was being operated).
    (G) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (H) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
(3) Navy's Measures for Underwater Detonations
(i) Surface-to-Surface Gunnery (Non-Explosive Rounds)
    (A) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (B) From the intended firing position, trained lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (C) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (D) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
(ii) Surface-to-Air Gunnery (Explosive and Non-Explosive Rounds)
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will expedite the recovery of any parachute deploying 
aerial targets to reduce the potential for entanglement of marine 
mammals.
    (C) Target towing aircraft shall maintain a lookout. If a marine 
mammal is sighted in the vicinity of the exercise, the tow aircraft 
shall immediately notify the firing vessel in order to secure gunnery 
firing until the area is clear.
(iii) Air-to-Surface At-Sea Bombing Exercises (Explosive and Non-
Explosive)
    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact within 1,000 yds (914 m) of known or observed floating kelp or 
marine mammals.
    (B) A 1,000 yd (914-m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (152 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually 
see ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
(iv) Air-to-Surface Missile Exercises (Explosive and Non-Explosive)
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.
(v) Demolitions, Mine Warfare, and Mine Countermeasures (Up to a 2.5-lb 
Charge)
    (A) Exclusion Zones--All Mine Warfare and Mine Countermeasures 
Operations involving the use of explosive charges must include 
exclusion zones for marine mammals to prevent physical and/or acoustic 
effects to those species. These exclusion zones shall extend in a 700-
yard arc radius around the detonation site.
    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise surveys shall be conducted 
within 30 minutes prior to the commencement of the scheduled explosive 
event. The survey may be conducted from the surface, by divers, and/or 
from the air, and personnel shall be alert to the presence of any 
marine mammal. Should such an animal be present within the survey area, 
the explosive event shall not be started until the animal voluntarily 
leaves the area. The Navy will ensure the area is clear of marine 
mammals for a full 30 minutes prior to initiating the explosive event. 
Personnel will record any marine mammal observations during the 
exercise as well as measures taken if species are detected within the 
exclusion zone.
    (C) Post-Exercise Surveys--Surveys within the same radius shall 
also be conducted within 30 minutes after the completion of the 
explosive event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy training 
activities shall be immediately suspended and the situation immediately 
reported by the participating unit to the Officer in Charge of the 
Exercise (OCE), who will follow Navy procedures for reporting the 
incident to the Commander, Pacific Fleet, Commander, Navy Region 
Northwest, Environmental Director, and the chain of command. The 
situation shall also be reported to NMFS (see Stranding Plan for 
details).
(vi) Sink Exercise
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.0 nm (1.9 km) would be 
established around each target. This exclusion zone is based on 
calculations using a 990-lb (450-kg) H6 net explosive weight high 
explosive source detonated 5 ft (1.5 m) below the surface of the water, 
which

[[Page 33897]]

yields a distance of 0.85 nm (1.57 km) (cold season) and 0.89 nm (1.65 
km) (warm season) beyond which the received level is below the 182 
decibels (dB) re: 1 micropascal squared-seconds ([mu]Pa2-s) threshold 
established for the WINSTON S. CHURCHILL (DDG 81) shock trials (U.S. 
Navy, 2001). An additional buffer of 0.5 nm (0.9 km) would be added to 
account for errors, target drift, and animal movements. Additionally, a 
safety zone, which would extend beyond the buffer zone by an additional 
0.5 nm (0.9 km), would be surveyed. Together, the zones extend out 2 nm 
(3.7 km) from the target.
    (C) A series of surveillance over-flights shall be conducted within 
the exclusion and the safety zones, prior to and during the exercise, 
when feasible. Survey protocol shall be as follows:
    (1) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue 
Tactical Aid, which provides the best search altitude, ground speed, 
and track spacing for the discovery of small, possibly dark objects in 
the water based on the environmental conditions of the day. These 
environmental conditions include the angle of sun inclination, amount 
of daylight, cloud cover, visibility, and sea state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team would have completed the Navy's marine mammal training 
program for lookouts.
    (3) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring would be maintained throughout the 
exercise. Potential assets include sonobuoys, which can be utilized to 
detect any vocalizing marine mammals (particularly sperm whales) in the 
vicinity of the exercise. The sonobuoys shall be re-seeded as necessary 
throughout the exercise. Additionally, passive sonar onboard submarines 
may be utilized to detect any vocalizing marine mammals in the area. 
The OCE would be informed of any aural detection of marine mammals and 
would include this information in the determination of when it is safe 
to commence the exercise.
    (4) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (6) If a marine mammal observed within the exclusion zone is 
diving, firing would be delayed until the animal is re-sighted outside 
the exclusion zone, or 30 minutes have elapsed. After 30 minutes, if 
the animal has not been re-sighted it would be assumed to have left the 
exclusion zone. The OCE would determine if the listed species is in 
danger of being adversely affected by commencement of the exercise.
    (7) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any marine mammal. If marine 
mammals are sighted within the exclusion zone, the OCE shall be 
notified, and the procedure described above would be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability. The Navy has 
several types of aircraft capable of performing this task; however, not 
all types are available for every exercise. For each exercise, the 
available asset best suited for identifying objects on and near the 
surface of the ocean would be used. These aircraft would be capable of 
flying at the slow safe speeds necessary to enable viewing of marine 
vertebrates with unobstructed, or minimally obstructed, downward and 
outward visibility. The exclusion and safety zone surveys may be 
cancelled in the event that a mechanical problem, emergency search and 
rescue, or other similar and unexpected event preempts the use of one 
of the aircraft onsite for the exercise.
    (E) Every attempt would be made to conduct the exercise in sea 
states that are ideal for marine mammal sighting, Beaufort Sea State 3 
or less. In the event of a 4 or above, survey efforts shall be 
increased within the zones. This shall be accomplished through the use 
of an additional aircraft, if available, and conducting tight search 
patterns.
    (F) The exercise shall not be conducted unless the exclusion zone 
could be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, a detailed description of the animal shall be taken, the 
location noted, and if possible, photos taken. This information shall 
be provided to NMFS via the Navy's regional environmental coordinator 
for purposes of identification (see the Stranding Plan for detail).
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
(vii) Extended Echo Ranging/Improved Extended Echo Ranging (EER/IEER)
    (A) Crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (B) Crews shall conduct a minimum of 30 minutes of visual and aural 
monitoring of the search area prior to commanding the first post 
detonation. This 30-minute observation period may include pattern 
deployment time.
    (C) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of 
observed marine mammal activity, the Navy shall deploy the receiver 
ONLY and monitor while conducting a visual search. When marine mammals 
are no longer detected within 914 m (1,000 yd) of the intended post 
position, the Navy shall co-locate the explosive source sonobuoy (AN/
SSQ-110A) (source) with the receiver.
    (D) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include monitoring of own-aircraft sensors from first sensor 
placement to checking off station and out of RF range of these sensors.
    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected 
within 914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) 
intended for use, then that payload shall not be detonated. Aircrews 
may utilize this post once the marine mammals have not been re-sighted 
for 30 minutes, or are observed to have moved outside the 914 m (1,000 
yd) safety buffer. Aircrews may shift their multi-static active search 
to another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.

[[Page 33898]]

    (G) Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using 
the ``Scuttle'' command when two payloads remain at a given post. 
Aircrews will ensure that a 914 m (1,000 yd) safety buffer, visually 
clear of marine mammals, is maintained around each post as is done 
during active search operations.
    (H) Aircrews shall only leave posts with unexploded charges in the 
event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary or 
tertiary method.
    (I) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that can not be scuttled shall be 
reported as unexploded ordnance via voice communications while 
airborne, then upon landing via naval message.
    (J) Mammal monitoring shall continue until out of own-aircraft 
sensor range.
(viii) Memorandum of Agreement (MOA)
    The Navy and NMFS shall develop an MOA, or other mechanism 
consistent with Federal fiscal law requirements (and all other 
applicable laws), that allows the Navy to assist NMFS with the Phase 1 
and 2 Investigations of USEs through the provision of in-kind services, 
such as (but not limited to) the use of plane/boat/truck for transport 
of personnel involved in the stranding response or investigation or 
animals, use of Navy property for necropsies or burial, or assistance 
with aerial surveys to discern the extent of a USE. The Navy may assist 
NMFS with the Investigations by providing one or more of the in-kind 
services outlined in the MOA, when available and logistically feasible 
and when the assistance does not negatively affect Fleet operational 
commitments.
    (b) [Reserved]


Sec.  218.115  Requirements for monitoring and reporting.

    (a) The Navy is required to cooperate with the NMFS, and any other 
Federal, State or local agency monitoring the impacts of the activity 
on marine mammals.
    (b) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy will provide 
NMFS with species or description of the animal(s), the condition of the 
animal(s) (including carcass condition if the animal is dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available). In the event that an injured, stranded, 
or dead marine mammal is found by the Navy that is not in the vicinity 
of, or during or shortly after, MFAS, HFAS, or underwater explosive 
detonations, the Navy will report the same information as listed above 
as soon as operationally feasible and clearance procedures allow.
    (c) General Notification of Ship Strike--In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown)
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (ex., dead, injured 
but alive, injured and moving, unknown, etc.), vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video, if equipment is available
    (d) Event Communication Plan--The Navy shall develop a 
communication plan that will include all of the communication protocols 
(phone trees, etc.) and associated contact information required for 
NMFS and the Navy to carry out the necessary expeditious communication 
required in the event of a stranding or ship strike, including as 
described in the proposed notification measures above.
    (e) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization including abiding by the NWTRC 
Monitoring Plan (http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications)
    (f) Report on Monitoring required in paragraph (c) of this 
section--The Navy shall submit a report annually on September 1 
describing the implementation and results (through June 1 of the same 
year) of the monitoring required in paragraph (c) of this section. Navy 
will standardize data collection methods across ranges to allow for 
comparison in different geographic locations.
    (g) Annual NWTRC Report--The Navy will submit an Annual NWTRC 
Report on October 1 of every year (covering data gathered through 
August 1). This report shall contain the subsections and information 
indicated below.
    (1) ASW Summary--This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs and MIW):
    (i) Total Hours--Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.))
    (ii) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of 
annually reporting non-major training (i.e., ULT) utilizing hull-
mounted sonar. The report shall present an annual (and seasonal, where 
practicable) depiction of non-major training exercises geographically 
across NWTRC. The Navy shall include (in the NWTRC annual report) a 
brief annual progress update on the status of the development of an 
effective and unclassified method to report this information until an 
agreed-upon (with NMFS) method has been developed and implemented.
    (h) Sinking Exercises (SINKEXs)--This section shall include the 
following information for each SINKEX completed that year:
    (1) Exercise Info;
    (i) Location;
    (ii) Date and time exercise began and ended;
    (iii) Total hours of observation by watchstanders before, during, 
and after exercise;
    (iv) Total number and types of rounds expended/explosives 
detonated;
    (v) Number and types of passive acoustic sources used in exercise;
    (vi) Total hours of passive acoustic search time;
    (vii) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (viii) Wave height in feet (high, low and average during exercise); 
and
    (ix) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted
    (2) Individual Marine Mammal Observation during SINKEX (by Navy 
Lookouts) Information
    (i) Location of sighting;
    (ii) Species (if not possible--indication of whale/dolphin/
pinniped);

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    (iii) Number of individuals;
    (iv) Calves observed (y/n);
    (v) Initial detection sensor;
    (vi) Length of time observers maintained visual contact with marine 
mammal;
    (vii) Wave height;
    (viii) Visibility;
    (ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (x) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (A) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (TBD m for SINKEX in NWTRC);
    (B) The required exclusion zone (1 nm for SINKEX in NWTRC);
    (C) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in NWTRC); and
    (D) Greater than the required observed distance. For example, in 
this case, the observer would indicate if < TBD m, from 738 m - 1 nm, 
from 1 nm - 2 nm, and > 2 nm.
    (xi) Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction.
    (xii) Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long.
    (xiii) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (i) Improved Extended Echo-Ranging System (IEER) Summary
    (1) Total number of IEER events conducted in NWTRC;
    (2) Total expended/detonated rounds (buoys); and
    (3) Total number of self-scuttled IEER rounds.
    (j) Explosives Summary--The Navy is in the process of improving the 
methods used to track explosive use to provide increased granularity. 
To the extent practicable, the Navy shall provide the information 
described below for all of their explosive exercises. Until the Navy is 
able to report in full the information below, they will provide an 
annual update on the Navy's explosive tracking methods, including 
improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in NWTRC; and
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (k) NWTRC 5-Yr Comprehensive Report--The Navy shall submit to NMFS 
a draft report that analyzes and summarizes all of the multi-year 
marine mammal information gathered during ASW and explosive exercises 
for which annual reports are required (Annual NWTRC Exercise Reports 
and NWTRC Monitoring Plan Reports). This report will be submitted at 
the end of the fourth year of the rule (November 2013), covering 
activities that have occurred through June 1, 2013.
    (l) Comprehensive National ASW Report--By June, 2014, the Navy 
shall submit a draft National Report that analyzes, compares, and 
summarizes the active sonar data gathered (through January 1, 2014) 
from the watchstanders and pursuant to the implementation of the 
Monitoring Plans for the Northwest Training Range Complex, the Southern 
California Range Complex, the Atlantic Fleet Active Sonar Training, the 
Hawaii Range Complex, the Marianas Islands Range Complex, and the Gulf 
of Alaska.


Sec.  218.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. Citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  218.110(c) (i.e., the Navy) must apply for and 
obtain either an initial Letter of Authorization in accordance with 
Sec.  218.117 or a renewal under Sec.  218.118.


Sec.  218.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  218.118.
    (b) Each Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization shall be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  218.118  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.177 of this chapter or the activity identified in Sec.  218.170(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.246 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Receipt of the monitoring reports and notifications within the 
indicated timeframes required under Sec.  218.115(b through j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.114 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.117 of this 
chapter, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) Adaptive Management--Based on new information, NMFS may modify 
or augment the existing mitigation measures if new data suggests that 
such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable. 
Similarly, NMFS may coordinate with the Navy to modify or augment the 
existing monitoring requirements if the new data suggest that the 
addition of a particular measure would likely fill in a specifically 
important data gap. The following are some possible sources of new and 
applicable data:
    (1) Results from the Navy's monitoring from the previous year 
(either from the NWTRC or other locations);
    (2) Results from specific stranding investigations (either from the 
NWTRC Range Complex or other locations, and involving coincident MFAS/
HFAS training or not involving coincident use) or NMFS' long term 
prospective stranding investigation discussed in the preamble to this 
proposed rule;
    (3) Results from general marine mammal and sound research (funded 
by the Navy or otherwise);
    (4) 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.
    (c) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 218.118 of this chapter indicates that a 
substantial modification to the described work, mitigation or

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monitoring undertaken during the upcoming season will occur, or if NMFS 
utilizes the adaptive management mechanism addressed in paragraph (b) 
of this section to modify or augment the mitigation or monitoring 
measures, the NMFS shall provide the public a period of 30 days for 
review and comment on the request. Review and comment on renewals of 
Letters of Authorization would be restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (d) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.


Sec.  218.119  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 
and 218.117 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  218.118, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  218.110(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 218.117 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

[FR Doc. E9-16301 Filed 7-10-09; 8:45 am]
BILLING CODE 3510-22-P