Taking of Marine Mammals Incidental to Specified Activities: Taking Marine Mammals Incidental to Training Operations Conducted within the Gulf of Mexico Range Complex
Federal Register: July 14, 2009 (Volume 74, Number 133)
Proposed Rules
Page 33960-33986
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr14jy09-23
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 218
RIN 0648-AX86
Taking of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Training Operations Conducted
Within the Gulf of Mexico Range Complex
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
SUMMARY: NMFS has received requests from the U.S. Navy (Navy) for authorizations for the take of marine mammals incidental to training and operational activities conducted by the Navy's Atlantic Fleet within the Gulf of Mexico (GOMEX) Range Complex for the period beginning December 3, 2009 and ending December 2, 2014. Pursuant to the implementing regulations of 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 13, 2009.
ADDRESSES: You may submit comments, identified by 0648-AX86, by any one of the following methods:
Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
Hand delivery or mailing of paper, disk, or CD-ROM comments should be addressed to Michael Payne, Chief, Permits,
Conservation and Education Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910-3225.
Instructions: All comments received are 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 NA in the required
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fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 137.
SUPPLEMENTARY INFORMATION:
Availability
A copy of the Navy's application may be obtained by writing to the address specified above (See ADDRESSES), telephoning the contact listed above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
The Navy's Draft Environmental Impact Statement (DEIS) for the GOMEX
Range Complex was published in November 2008, and may be viewed at http://www.gomexrangecomplexeis.com/. NMFS participated in the development of the Navy's DEIS as a cooperating agency under the
National Environmental Policy Act (NEPA).
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) 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 for incidental takings may 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.
With respect to military readiness activities, the MMPA defines
``harassment'' as:
(i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A
Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
Summary of Request
On October 2, 2008, NMFS received an application from the Navy requesting an authorization for the take of marine mammal species/ stocks incidental to the proposed training operations within the GOMEX
Range Complex over the course of 5 years. These training activities are classified as military readiness activities. The Navy states that these training activities may cause various impacts to marine mammal species in the proposed GOMEX Range Complex Study Area. The Navy requests an authorization to take 8 species of cetaceans annually by Level B harassment, and 1 individual each of pantropical spotted dolphin and spinner dolphin by Level A harassment (injury). Please refer to the take table on page 6-17 of the LOA application for detailed information of the potential exposures from explosive ordnance (per year) for marine mammals in the GOMEX Range Complex. However, due to the implementation of the proposed mitigation and monitoring measures, NMFS believes that the actual take would be less than estimated.
Description of the Specified Activities
The GOMEX Study Area encompasses areas at sea, undersea, and
Special Use Airspace (SUA) in the northern Gulf of Mexico off the coast of the U.S. (Figures 1 and 2 of the LOA application). The portions of the GOMEX Study Area to be considered for the proposed action consist of the BOMBEX Hotbox (surface and subsurface waters) located within the
Pensacola Operation Area (OPAREA), SUA warning areas W-151A/B/C and W- 155A/B (surface waters), and underwater detonation (UNDET) Area E3
(surface and subsurface waters), located within the territorial waters off Padre Island, Texas, near Corpus Christi NAS. The portions of the
GOMEX Study Area addressed in the Navy's LOA application encompass: 1,496 nm\2\ (5,131 km\2\) of sea space (BOMBEX Hotbox, where high explosives occur, and UNDET Area E3 where underwater detonations occur); and 11,714 nm\2\ (40,178 km\2\) of SUA warning areas (vessel movements only) The BOMBEX Hotbox is an in-water operating and maneuvers area with defined air, ocean surface, and subsurface areas.
The BOMBEX Hotbox is located in the offshore waters of the northeastern
Gulf of Mexico (GOM) adjacent to Florida and Alabama. The northernmost boundary of the BOMBEX Hotbox is located 23 nm (42.6 km) from the coast of the Florida panhandle at latitude 30 [deg]N, the eastern boundary is approximately 200 nm (370.4 km) from the coast of the Florida peninsula at longitude 86[deg]48' W.
The SUA warning areas, W-151A/B/C and W-155A/B, are in-water operating and maneuver areas with defined air and ocean surface. W- 151A/B/C and W-155A/B are located in and above the offshore waters of the northeastern GOM adjacent to Florida and Alabama.
The UNDET Area E3 is a defined surface and subsurface area located in the waters south of Corpus Christi NAS and offshore of Padre Island,
Texas. The westernmost boundary is located 7.5 nm (13.9 km) from the coast of Padre Island at 97[deg]9'33'' W and 27[deg]24'26'' N at the
Western most corner. It lies entirely within the territorial waters (0 to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it lies within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a very shallow water training area with depths ranging from 20 to 26 m.
In the application submitted to NMFS, the Navy requests an authorization to take marine mammals incidental to conducting training operations within the GOMEX Range Complex. These training activities consist of surface warfare. Although vessel movement is also a component of the proposed GOMEX Range Complex training activities, the
Navy concludes that it is unlikely marine mammals would be taken by vessel movement with the implementation of mitigation and monitoring measures described in the Mitigation Measures and Monitoring Measures sections.
Surface Warfare
Surface Warfare (SUW) supports defense of a geographical area
(e.g., a zone or barrier) in cooperation with surface, subsurface, and air forces. SUW operations detect, localize, and track surface targets, primarily ships. Detected ships are monitored visually and with radar.
Operations include identifying surface contacts, engaging with weapons, disengaging, evasion, and avoiding attack, including implementation of radio silence and deceptive measures. For the proposed GOMEX Range
Complex training operations, SUW events involving the use of explosive ordnance include air-to-surface Bombing Exercises [BOMEX (A-S)] and small arms training (involving explosive hand grenades) that occur at sea.
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(A) Bombing Exercise (Air-to-Surface) [BOMEX (A-S)]
Strike fighter aircraft, such as F/A-18s, deliver explosive bombs against at-sea surface targets with the goal of destroying the target.
BOMBEX (A-S) training in the GOMEX Study Area occurs only during daylight hours in the BOMBEX Hotbox area.
For the proposed BOMBEX (A-S), two aircraft will approach an at-sea target from an altitude of between 15,000 ft (4,572 m) to less than 3,000 ft (914.4 m) and release a high explosive (HE) 1,000-pound (lb) bomb on the target. MK-83 bombs would be used. MK-83 bombs have a net explosive weight (NEW) of 415.8 lbs. The typical bomb release altitude is below 3,000 ft (914.4 m) and the target is usually a flare. The time in between bomb drops is approximately 3 minutes.
(B) Small Arms Training (Explosive Hand Grenades)
Small arms training is a part of quarterly reservist training and operational activities for the Mobile Expeditionary Security Group
(MESG) that operates out of Corpus Christi Naval Air Station (NAS). The
MESG trains with MK3A2 (0.5-lb NEW) anti-swimmer concussion grenades.
The MK3A2 grenades are small and contain high explosives in an inert metal or plastic shell. They detonate at about 3 m under the water's surface within 4 to 5 seconds of being deployed. The detonation depth may be shallower depending upon the speed of the boat at the time the grenade is deployed.
A number of different types of boats will be used depending on the unit using the boat and their mission. Boats are mostly used by naval special warfare (NSW) teams and Navy Expeditionary Combat Command
(NECC) units (Naval Coastal Warfare, Inshore Boat Units, Mobile
Security Detachments, Explosive Ordnance Disposal, and Riverine
Forces). These units are used to protect ships in harbors and high value units, such as aircraft carriers, nuclear submarines, liquid natural gas tankers, etc., while entering and leaving ports, as well as to conduct riverine operations, insertion and extractions, and various
NSW operations.
The boats used by these units include: Small Unit River Craft
(SURC), Combat Rubber Raiding Craft (CRRC), Rigid Hull Inflatable Boats
(RHIB), Patrol Craft, and many other versions of these types of boats.
These boats use inboard or outboard, diesel or gasoline engines with either propeller or water jet propulsion.
This exercise is usually a live-fire exercise with M3A2 Anti- swimmer Concussion Grenades, but at times blanks may be used so boat crews can practice their ship-handling skills for the employment of weapons without being concerned with the safety requirements involved with HE weapons. Boat crews may use high or low speeds to approach and engage targets simulating swimmers with anti-swimmer concussion grenades. The purpose of this exercise is to develop marksmanship skills and small boat ship-handling tactics skills required to employ these weapons. Training usually lasts 1-2 hours. Small arms training in the GOMEX Study Area will occur during day or evening hours in the
UNDET Area E3.
Table 1 summarizes the level of Surface Warfare training activities planned in the GOMEX Range Complex for the proposed action.
Table 1--Level of Surface Warfare Training Activities Planned in the GOMEX Range Complex per Year
Potential time of
Operation
Platform
System/ordnance
Number of events
Training area
day
Event duration
Bombing Exercise (BOMBEX) (Air- F/A-18............. MK-831,000-lb High 1 event (4 bombs in BOMBEX Hotbox..... Daytime only...... 1 hour. to-Surface, At-Sea).
Explosive (HE)
succession). bomb] 415.8 lbs
NEW.
Small Arms Training............. Maritime
MK3A2 anti-swimmer 6 events* (20 live UNDET Area E3..... Day or night...... 1 hour.
Expeditionary
grenades (8-oz HE grenades).
Support Group
grenade) 0.5 lb
(Various Small
NEW.
Boats).
* An individual event can include detonation of up to 10 live grenades, but no more than 20 live grenades will be used per year.
Vessel Movement
Vessel movements are associated with most training and operational activities in the GOMEX Study Area. Currently, the number of Navy vessels operating in the GOMEX Study Area varies based on training schedules and can range from 0 to about 10 vessels at any given time.
Vessel sizes range from small boats (2-s maximum EL in any \1/3\- octave band at frequencies above 100 Hz for toothed whales/sea turtles and in any \1/3\-octave band above 10 Hz for baleen whales. As stated previously for TTS, for small explosives (2- s) is the criterion that dominates in the analysis to determine potential behavioral exposures (MMPA-Level B) due to the use of multiple explosions.
-
Summary of Thresholds and Criteria for Impulsive Sounds
Table 3 summarizes the effects, criteria, and thresholds used in the assessment for impulsive sounds. The criteria for behavioral effects without physiological effects used in this analysis are based on use of multiple explosives that only take place during a BOMBEX event.
Table 3--Effects, Criteria, and Thresholds for Impulsive Sounds
Effect
Criteria
Metric
Threshold
Effect
Mortality.................... Onset of Extensive
Goertner modified
Indexed to 30.5 psi- Mortality.
Lung Injury.
positive impulse.
msec (assumes 100 percent small animal at 26.9 lbs).
Injurious Physiological...... 50% Tympanic
Energy flux density. 1.17 in-lb/in\2\
Level A.
Membrane Rupture.
(about 205 dB re 1 microPa\2\-sec).
Injurious Physiological...... Onset Slight Lung
Goertner modified
Indexed to 13 psi-
Level A.
Injury.
positive impulse.
msec (assumes 100 percent small animal at 26.9 lbs).
Non-injurious Physiological.. TTS................. Greatest energy flux 82 dB re 1
Level B. density level in
microPa\2\-sec. any \1/3\-octave band (>100 Hz for toothed whales and
>10 Hz for baleen whales)--for total energy over all exposures 1.
Non-injurious Physiological.. TTS................. Peak pressure over 23 psi.............. Level B. all exposures.
Non-injurious Behavioral..... Multiple Explosions Greatest energy flux 177 dB re 1
Level B.
Without TTS.
density level in
microPa\2\-sec. any \1/3\-octave
(>100 Hz for toothed whales and
> 10Hz for baleen whales)--for total energy over all exposures (multiple explosions only).
The criteria for mortality, Level A Harassment, and Level B
Harassment resulting from explosive detonations were initially developed for the Navy's Sea Wolf 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 3. Additional information regarding the derivation of these criteria is available in the Navy's FEIS for the
GOMEX Range Complex and in the Navy's Churchill FEIS (U.S. Department of the Navy, 2001).
-
Acoustic Environment
Sound propagation (the spreading or attenuation of sound) in the oceans of the world is affected by several environmental factors: water depth, variations in sound speed within the water column, surface roughness, and the geo-acoustic properties of the ocean bottom. These parameters can vary widely with location.
Four types of data are used to define the acoustic environment for each analysis site:
Seasonal Sound Velocity Profiles (SVP)--Plots of propagation speed
(velocity) as a function of depth, or SVPs, are a fundamental tool used for predicting how sound will travel. Seasonal SVP averages were obtained for each training area.
Seabed Geo-acoustics--The type of sea floor influences how much sound is absorbed and how much sound is reflected back into the water column.
Wind Speeds--Several environmental inputs, such as wind speed and surface roughness, are necessary to model acoustic propagation in the prospective training areas.
Bathymetry Data--Bathymetry data are necessary to model acoustic propagation and were obtained for each of the training areas.
-
Acoustic Effects Analysis
The acoustic effects analysis presented in the following sections is summarized for each major type of exercise. A more in-depth effects analysis is in Appendix A of the LOA application and the Addendum. 1. BOMBEX
Modeling was completed for four explosive sources (sequential detonation of four bombs per event) involved in BOMBEX with an assumed detonation depth of 1 m. The NEW used in simulations of the MK83 is 415.8 lbs.
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Determining the zone of influence (ZOI) for the thresholds in terms of total EFD, impulse, peak pressure and \1/3\-octave bands EFD must treat the sequential explosions differently than the single detonations. For the MK-83, two factors are involved for the sequential explosives that deal with the spatial and temporal distribution of the detonations as well as the effective accumulation of the resultant acoustics. In view of the ZOI determinations, the sequential detonations are modeled as a single point event with only the EFD summed incoherently:
GRAPHIC
TIFF OMITTED TP14JY09.004
The multiple explosion energy criterion was used to determine the
ZOI for the Level B without TTS exposure analysis. Table 4 shows the
ZOI results of the model estimation. The ZOI, when multiplied by the animal densities and total number of events (Table 1), provides the exposure estimates for that animal species for the given bomb source.
BOMBEX is restricted to one location (BOMBEX Hotbox). In addition to other mitigation measures (see Mitigation Measures section below), aircraft will survey the target area for marine mammals before and during the exercise. Ships will not fire on the target until the area is surveyed and determined to be free of marine mammals. The exercise will be suspended if any marine mammals enter the buffer area (5,100- yard or 4,663-m radius around target). The implementation of mitigation measures like these effectively reduce exposures in the ZOI.
Table 4--Estimated ZOIs (km\2\) Used in Exposure Calculations for BOMBEX Using MK-83 (415.8 lbs NEW) in the GOMEX Range Complex for Different Seasons
Estimated ZOI @ 177 dB re 1 [mu]Pa\2\-sec
Estimated ZOI @ 182 dB re 1 [mu]Pa\2\-sec or Estimated ZOI @ 205 dB re 1 [mu]Pa\2\-sec or
Mortality ZOI @ 30.5 psi
(multiple detonations only)
23 psi
13 psi
-----------------------------------------------
Win
Spr
Sum
Fall
Win
Spr
Sum
Fall
Win
Spr
Sum
Fall
Win
Spr
Sum
Fall
98.93
115.93
161.39
173.27
55.53
76.82
137.33
158.07
4.84
4.84
4.84
4.98
Location of sighting;
Species (if not possible, indicate whale, dolphin or pinniped);
Number of individuals;
Whether calves were observed;
Initial detection sensor;
Length of time observers maintained visual contact with marine mammal;
Wave height;
Visibility;
Whether sighting was before, during, or after detonations/ exercise, and how many minutes before or after;
Distance of marine mammal from actual detonations (or target spot if not yet detonated);
Observed behavior--Watchstanders will report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming etc.), including speed and direction;
Resulting mitigation implementation--Indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long; and
If observation occurs while explosives are detonating in the water, indicate munitions type in use at time of marine mammal detection (e.g., were the 5-inch guns actually firing when the animals were sighted? Did animals enter an area 2 minutes after a huge explosion went off?).
-
Passive Acoustic Monitoring
The Navy is required to conduct passive acoustic monitoring when operationally feasible.
(A) Any time a towed hydrophone array is employed during shipboard surveys the towed array shall be deployed during daylight hours for each of the days the ship is at sea.
(B) The towed hydrophone array shall be used to supplement the ship-based systematic line-transect surveys (particularly for species such as beaked whales that are rarely seen).
-
Marine Mammal Observers on Navy Platforms
(A) MMOs selected for aerial or vessel surveys shall be placed on a
Navy platform during one of the exercises being monitored per year. The remaining designated exercise(s) shall be monitored by the Navy lookouts/watchstanders.
(B) The MMO must possess expertise in species identification of regional marine mammal species and experience collecting behavioral data.
(C) MMOs shall not be placed aboard Navy platforms for every Navy training event or major exercise, but during specifically identified opportunities deemed appropriate for data collection efforts. The events selected for MMO participation shall take into account safety, logistics, and operational concerns.
(D) MMOs shall observe from the same height above water as the lookouts.
(E) The MMOs shall not be part of the Navy's formal reporting chain of command during their data collection efforts; Navy lookouts shall continue to serve as the primary reporting means within the Navy chain of command for marine mammal sightings. The only exception is that if an animal is observed within the shutdown zone that has not been observed by the lookout, the MMO shall inform the lookout of the sighting, and the lookout shall take the appropriate action through the chain of command.
(F) The MMOs shall collect species identification, behavior, direction of travel relative to the Navy platform, and distance first observed. All MMO sightings shall be conducted according to a standard operating procedure. Information collected by MMOs should be the same as those collected by Navy lookout/watchstanders described above.
The Monitoring Plan for the GOMEX Range Complex has been designed as a collection of focused ``studies'' (described fully in the GOMEX
Monitoring Plan) to gather data that will allow the Navy to address the following questions:
(A) What are the behavioral responses of marine mammals that are exposed to explosives?
(B) Is the Navy's suite of mitigation measures effective at avoiding injury and mortality of marine mammals?
Data gathered in these studies will be collected by qualified, professional marine mammal biologists or trained Navy lookouts/ watchstanders that are experts in their field. This monitoring plan has been designed to gather data on all species of marine mammals that are observed in the GOMEX Range Complex study area.
Monitoring Workshop
During the public comment period on past proposed rules for Navy actions (such as the Hawaii Range Complex (HRC) and Southern California
Range Complex (SOCAL) proposed rules), NMFS received a recommendation that a workshop or panel be convened to solicit input on the monitoring plan from researchers, experts, and other interested parties. The GOMEX
Range Complex proposed rule included an adaptive management component and both NMFS and the Navy believe that a workshop would provide a means for Navy and NMFS to consider input from participants in determining whether (and if so, how) to modify monitoring techniques to more effectively accomplish the goals of monitoring set forth earlier in the document. NMFS and the Navy believe that this workshop concept is valuable in relation to all of the Range Complexes and major training exercise rules and LOAs that NMFS is working on with the Navy at this time. Consequently, NMFS has determined that this single
Monitoring Workshop will be included as a component of all of the rules and LOAs that NMFS will be processing for the Navy in the next year or so.
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
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previous two years of monitoring pursuant to the GOMEX Range Complex rule as well as monitoring results from other Navy rules and LOAs
(e.g., VACAPES, AFAST, SOCAL, HRC, and other rules). 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.
Integrated Comprehensive Monitoring Program
In addition to the site-specific Monitoring Plan for the GOMEX
Range Complex, the Navy will complete the Integrated Comprehensive
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP is currently in development by the Navy, with Chief of Naval Operations
Environmental Readiness Division (CNO-N45) having the lead. The program does not duplicate the monitoring plans for individual areas (e.g.,
AFAST, HRC, SOCAL, VACAPES); instead it is intended to provide the overarching coordination that will support compilation of data from both range-specific monitoring plans as well as Navy funded research and development (R&D) studies. The ICMP will coordinate the monitoring programs' progress towards meeting its goals and develop a data management plan. A program review board is also being considered to provide additional guidance. The ICMP will be evaluated annually to provide a matrix for progress and goals for the following year, and will make recommendations on adaptive management for refinement and analysis of the monitoring methods.
The primary objectives of the ICMP are to:
Monitor and assess the effects of Navy activities on protected species;
Ensure that data collected at multiple locations is collected in a manner that allows comparison between and among different geographic locations;
Assess the efficacy and practicality of the monitoring and mitigation techniques;
Add to the overall knowledge-base of marine species and the effects of Navy activities on marine species.
The ICMP will be used both as: (1) a planning tool to focus Navy monitoring priorities (pursuant to ESA/MMPA requirements) across Navy
Range Complexes and Exercises; and (2) an adaptive management tool, through the consolidation and analysis of the Navy's monitoring and watchstander data, as well as new information from other Navy programs
(e.g., R&D), and other appropriate newly published information.
In combination with the 2011 Monitoring Workshop and the adaptive management component of the GOMEX Range Complex rule and the other Navy rules (e.g. VACAPES Range Complex, Jacksonville Range Complex, etc.), the ICMP could potentially provide a framework for restructuring the monitoring plans and allocating monitoring effort based on the value of particular specific monitoring proposals (in terms of the degree to which results would likely contribute to stated monitoring goals, as well the likely technical success of the monitoring based on a review of past monitoring results) that have been developed through the ICMP framework, instead of allocating based on maintaining an equal (or commensurate to effects) distribution of monitoring effort across range complexes. For example, if careful prioritization and planning through the ICMP (which would include a review of both past monitoring results and current scientific developments) were to show that a large, intense monitoring effort in Hawaii would likely provide extensive, robust and much-needed data that could be used to understand the effects of sonar throughout different geographical areas, it may be appropriate to have other range complexes dedicate money, resources, or staff to the specific monitoring proposal identified as ``high priority'' by the
Navy and NMFS, in lieu of focusing on smaller, lower priority projects divided throughout their home range complexes.
The ICMP will identify:
A means by which NMFS and the Navy would jointly consider prior years' monitoring results and advancing science to determine if modifications are needed in mitigation or monitoring measures to better effect the goals laid out in the Mitigation and Monitoring sections of the GOMEX Range Complex rule.
Guidelines for prioritizing monitoring projects.
If, as a result of the workshop and similar to the example described in the paragraph above, the Navy and NMFS decide it is appropriate to restructure the monitoring plans for multiple ranges such that they are no longer evenly allocated (by rule), but rather focused on priority monitoring projects that are not necessarily tied to the geographic area addressed in the rule, the ICMP will be modified to include a very clear and unclassified recordkeeping system that will allow NMFS and the public to see how each range complex/project is contributing to all of the ongoing monitoring programs (resources, effort, money, etc.).
Adaptive Management
NMFS proposes to include an adaptive management component in the final regulations governing the take of marine mammals incidental to
Navy training exercises in the GOMEX Range Complex. The use of adaptive management will give NMFS the ability to consider new data from different sources to determine (in coordination with the Navy) on an annual basis if 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, if issued.
The following are some of the possible sources of applicable data:
Results from the Navy's monitoring from the previous year
(either from GOMEX Range Complex or other locations).
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.
Compiled results of Navy funded research and development
(R&D) studies (presented pursuant to the ICMP, which is discussed elsewhere in this document).
Results from specific stranding investigations (either from GOMEX Range Complex or other locations).
Results from general marine mammal and sound research
(funded by the Navy or otherwise).
Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent Letters of Authorization.
Mitigation measures could be modified or added (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
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coordinate with the Navy to modify or 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 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 Measures
In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth ``requirements pertaining to the monitoring and reporting of such taking''. Effective reporting is critical to ensure compliance with the terms and conditions of a LOA, and to provide NMFS and the Navy with data of the highest quality based on the required monitoring. As NMFS noted in its proposed rule, additional detail has been added to the reporting requirements since they were outlined in the proposed rule. The updated reporting requirements are all included below. A subset of the information provided in the monitoring reports may be classified and not releasable to the public.
NMFS will work with the Navy to develop tables that allow for efficient submission of the information required below.
General Notification of Injured or Dead Marine Mammals
Navy personnel will ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as operational security allows) if an injured or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy training exercise utilizing underwater explosive detonations or other activities. 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).
Annual GOMEX Range Complex Monitoring Plan Report
The Navy shall submit a report annually on November 1 describing the implementation and results (through September 1 of the same year) of the GOMEX Range Complex Monitoring Plan, described above. Data collection methods will be standardized across range complexes to allow for comparison in different geographic locations. Although additional information will also be gathered, the MMOs collecting marine mammal data pursuant to the GOMEX Range Complex Monitoring Plan shall, at a minimum, provide the same marine mammal observation data required in major range complex training exercises section of the Annual GOMEX
Range Complex Exercise Report referenced below.
The GOMEX Range Complex Monitoring Plan Report may be provided to
NMFS within a larger report that includes the required Monitoring Plan
Reports from multiple Range Complexes.
Annual GOMEX Range Complex Exercise Report
The Navy is in the process of improving the methods used to track explosives used to provide increased granularity. 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.
(i) Total annual number of each type of explosive exercise (of those identified as part of the ``specified activity'' in this final rule) conducted in the GOMEX Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.) for each explosive type.
GOMEX Range Complex 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 the GOMEX Range Complex exercises for which annual reports are required (Annual GOMEX Range Complex Exercise Reports and GOMEX Range
Complex Monitoring Plan Reports). This report will be submitted at the end of the fourth year of the rule (March 2014), covering activities that have occurred through September 1, 2013.
Estimated Take of Marine Mammals
With respect to the MMPA, NMFS' effects assessment serves four primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment (behavioral harassment), Level A harassment
(injury), or mortality, including an identification of the number and types of take that could occur by Level A or B harassment or mortality) and to prescribe other means of affecting the least practicable adverse impact on such species or stock and its habitat (i.e., mitigation); (2) to determine whether the specified activity will have a negligible impact on the affected species or stocks of marine mammals (based on the likelihood that the activity will adversely affect the species or stock through effects on annual rates of recruitment or survival); (3) to determine whether the specified activity will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (however, there are no subsistence communities that would be affected in the GOMEX Range Complex, so this determination is inapplicable for this rulemaking); and (4) to prescribe requirements pertaining to monitoring and reporting.
In the Assessment of Marine Mammal Response to Anthropogenic Sound section, NMFS' analysis identified the lethal responses, physical trauma, sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particular stress responses), and behavioral responses that could potentially result from explosive ordnance exposures. In this section, we will relate the potential effects to marine mammals from underwater detonation of explosives to the MMPA regulatory definitions of Level A and Level B
Harassment and attempt to quantify the effects that might occur from the specific training activities that the Navy is proposing in the
GOMEX Range Complex.
Take Calculations
In estimating the potential for marine mammals to be exposed to an acoustic source, the Navy completed the following actions:
(1) Evaluated potential effects within the context of existing and current regulations, thresholds, and criteria;
(2) Identified all acoustic sources that will be used during Navy training activities;
(3) Identified the location, season, and duration of the action to determine which marine mammal species are likely to be present;
(4) Determined the estimated number of marine mammals (i.e., density) of each species that will likely be present in the respective
OPAREAs during the Navy training activities;
(5) Applied the applicable acoustic threshold criteria to the predicted sound exposures from the proposed activity. The results were then evaluated to
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determine whether the predicted sound exposures from the acoustic model might be considered harassment; and
(6) Considered potential harassment within the context of the affected marine mammal population, stock, and species to assess potential population viability. Particular focus on recruitment and survival are provided to analyze whether the effects of the action can be considered to have a negligible impact on marine mammal species or stocks.
Starting with a sound source, the attenuation of an emitted sound due to propagation loss is determined. Uniform animal distribution is overlaid onto the calculated sound fields to assess if animals are physically present at sufficient received sound levels to be considered
``exposed'' to the sound. If the animal is determined to be exposed, two possible scenarios must be considered with respect to the animal's physiology--effects on the auditory system and effects on non-auditory system tissues. These are not independent pathways and both must be considered since the same sound could affect both auditory and non- auditory tissues. Note that the model does not account for any animal response; rather the animals are considered stationary, accumulating energy until the threshold is tripped.
These modeling results do not take into account the mitigation measures (detailed in the Mitigation Measure section above) that lower the potential for exposures to occur given standard range clearance procedures and the likelihood that these species can be readily detected (e.g., small animals move quickly throughout the water column and are often seen riding the bow wave of large ships or in large groups). Nevertheless, based on the modeling results, 2 Atlantic spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins, 2 melon- headed whales, 26 pantropical spotted dolphins, 2 Risso's dolphins, 27 spinner dolphins, and 8 striped dolphins would be taken by Level B harassment (sub-TTS and TTS) as a result of the Navy training activities in the GOMEX Range Complex. In addition, 1 individual each of pantropical spotted dolphin and spinner dolphin would be taken by
Level A harassment (injury). Please refer to Table 6 for a detailed list of marine mammals that would be taken as a result of the proposed
Navy training activities within the GOMEX Range Complex. NMFS does not believe that there would be any mortality of any marine mammal resulting from the proposed training activities due to the sparse training activities and the implementation of mitigation and monitoring measures described above. Therefore, mortality of marine mammals would not be authorized. With the mitigation and monitoring measures implemented, the estimated take could be further reduced.
Effects on Marine Mammal Habitat
Marine mammal habitat and prey species could be affected by the explosive ordnance testing and the sound generated by such activities.
Based on the analysis contained in the Navy's DEIS and the information below, NMFS has determined that the GOMEX Range Complex training activities will not have adverse or long-term impacts on marine mammal habitat or prey species.
Unless the sound source or explosive detonation is stationary and/ or continuous over a long duration in one area, the effects of underwater detonation and its associated sound are generally considered to have a less severe impact on marine mammal habitat than the physical alteration of the habitat. Marine mammals may be temporarily displaced from areas where Navy training is occurring, but the area will be utilized again after the activities have ceased.
Effects on Food Resources
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 could leave the area temporarily. 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. In most situations, cause of death in fish 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 fish are generally less susceptible to death or injury than small fish. Moreover, elongated forms that are round in cross section are less at risk than deep-bodied forms. Orientation of fish relative to the shock wave may also affect the extent of injury. Open water pelagic fish (e.g., mackerel) 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 variation in fish populations, including numbers, species, sizes, and orientation and range from the detonation point, makes it very difficult to accurately predict mortalities at any specific site of detonation. A total of 7 hours explosive detonation events, with each event lasting for approximately 1 hour, are widely dispersed in two locations within the large GOMEX study area over the seasons for each year. Most fish species experience a large number of natural mortalities, especially during early life-stages, and any small level of mortality caused by the GOMEX Range Complex training exercises involving explosives will likely be insignificant to the population as a whole.
Therefore, potential impacts to marine mammal food resources within the GOMEX Range Complex are expected to be minimal given both 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 GOMEX Range
Complex.
Analysis and Negligible Impact Determination
Pursuant to NMFS' regulations implementing the MMPA, an applicant is required to estimate the number of animals that will be ``taken'' by the specified activities (i.e., takes by harassment only, or takes by harassment, injury, and/or death). This estimate informs the analysis that NMFS must perform to determine whether the activity will have a
``negligible impact'' on the species or stock. Level B (behavioral) harassment occurs at the level of the individual(s) and does not assume any resulting population-level consequences, though there are known avenues through which behavioral disturbance of individuals can result in population-level effects. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., 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,
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etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A takes, the number of estimated mortalities, and effects on habitat.
The Navy's specified activities have been described based on best estimates of the planned detonation events the Navy would conduct for the proposed GOMEX Range Complex training activities. The events are generally short in duration, with each of the seven annual events lasting for about 1 hour. Taking the above into account, along with the fact that NMFS anticipates no mortalities (and few injuries) to result from the action, the fact that there are no specific areas of reproductive importance for marine mammals recognized within the GOMEX
Range Complex, the sections discussed below, and dependent upon the implementation of the proposed mitigation measures, NMFS has determined that Navy training exercises utilizing underwater detonations will have a negligible impact on the affected marine mammal species and stocks present in the GOMEX Range Complex Study Area.
NMFS' analysis of potential behavioral harassment, temporary threshold shifts, permanent threshold shifts, injury, and mortality to marine mammals as a result of the GOMEX Range Complex training activities was provided earlier in this proposed rule and is analyzed in more detail below.
Behavioral Harassment
The Navy plans a total of 1 BOMBEX training event (with 4 bombs in succession for 1 hour) and 6 small arms training events (with 20 live grenades for each 1-hour event) annually. The total training exercises proposed by the Navy in the GOMEX Range Complex amount to approximately 7 hours per year. These detonation events are widely dispersed in two of the designated sites within the GOMEX Range Complex Study Area. The probability that detonation events will overlap in time and space with marine mammals is low, particularly given the densities of marine mammals in the GOMEX Range Complex Study Area and the implementation of monitoring and mitigation measures. Moreover, NMFS does not expect animals to experience repeat exposures to the same sound source as animals will likely move away from the source after being exposed. In addition, these isolated exposures, when received at distances of Level
B behavioral harassment (i.e., 177 dB re 1 microPa \2\-sec), are expected to cause brief startle reactions or short-term behavioral modification by the animals. These brief reactions and behavioral changes are expected to disappear when the exposures cease. Therefore, these levels of received impulse noise from detonation are not expected to affect annual rates or recruitment or survival.
TTS
NMFS and the Navy have estimated that individuals of some species of marine mammals may sustain some level of temporarily threshold shift
TTS from underwater detonations. TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths. The TTS sustained by an animal is primarily classified by three characteristics:
Frequency--Available data (of 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).
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). Since the impulse from detonation is extremely brief, an animal would have to approach very close to the detonation site to increase the received SEL. The threshold for the onset of TTS for detonations is a dual criteria: 182 dB re 1 microPa\2\-sec or 23 psi, which might be received at distances from 345-2,863 m from the centers of detonation based on the types of NEW involved to receive the SEL that causes TTS compared to similar source level with longer durations (such as sonar signals).
Duration of TTS (Recovery time)--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.
Although the degree of TTS depends on the received noise levels and exposure time, all studies show that TTS is reversible and animals' sensitivity is expected to recover fully in minutes to hours.
Therefore, NMFS expects that TTS would not affect annual rates of recruitment or survival.
Acoustic Masking or Communication Impairment
As discussed above, it is also possible that anthropogenic sound could result in masking of marine mammal communication and navigation signals. However, masking only occurs during the time of the signal
(and potential secondary arrivals of indirect rays), versus TTS, which occurs continuously for its duration. Impulse sounds from underwater detonation are extremely brief and the majority of most animals' vocalizations would not be masked. Therefore, masking effects from underwater detonation are expected to be minimal and unlikely. If masking or communication impairment were to occur briefly, it would be in the frequency ranges below 100 Hz, which overlaps with some mysticete vocalizations; however, it would likely not mask the entirety of any particular vocalization or communication series because of the short impulse.
PTS, Injury, or Mortality
The Navy's model estimated that 1 pantropical spotted dolphin and 1 spinner dolphin could experience 50-percent tympanic membrane rupture or slight lung injury (Level A harassment) as a result of the training activities utilizing underwater detonation by BOMBEX in the GOMEX Range
Complex Study Area. However, these estimates do not take into consideration the proposed mitigation and monitoring measures. For underwater detonations, the animals have to be within an area between certain injury zones of influence (ZOI) to experience Level A harassment. Such injury ZOI varies from 0.09 km\2\ to 4.98 km\2\ (or at distances between 169 m to 1,259 m from the center of detonation) depending on the types of munition used and the season of the action.
Though it is possible that Navy observers could fail to detect an animal at a distance of more than 1 km (an injury ZOI during BOMBEX, which is planned to have 1 event annually), all injury ZOIs from small arms trainings are smaller than 0.1 km\2\ (178 m in radius) and NMFS believes it is unlikely that any marine mammal could be detected by lookouts/watchstanders or MMOs. As discussed previously, the Navy plans to utilize aerial or vessel surveys to detect marine mammals for mitigation implementation and indicated that they are capable of effectively monitoring safety zones.
Based on these assessments, NMFS determined that approximately 2
Atlantic spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins, 2 melon-headed whales, 26 pantropical spotted dolphins, 2 Risso's dolphins, 27 spinner dolphins, and 8 striped dolphins could be affected by Level B harassment (TTS and sub-TTS) as a result of the proposed
GOMEX Range Complex training activities. These numbers represent
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approximately 0.01%, 0.51%, 0.09%, 0.09%, 0.08%, 0.13%, 1.36%, and 0.24% of Atlantic spotted dolphins, bottlenose dolphins (Gulf of Mexico oceanic stock), Clymene dolphins, melon-headed whales, pantropical spotted dolphins, Risso's dolphins, spinner dolphins, and striped dolphins, respectively, in the vicinity of the proposed GOMEX Range
Complex Study Area (calculation based on NMFS 2007 U.S. Atlantic and
Gulf of Mexico Marine Mammal Stock Assessment).
In addition, the Level A takes of 1 pantropical spotted dolphin and 1 spinner dolphin represent 0.0029% and 0.0503% of these species, respectively, in the vicinity of the proposed GOMEX Range Complex Study
Area (calculation based on NMFS 2007 U.S. Atlantic and Gulf of Mexico
Marine Mammal Stock Assessment). Given these very small percentages,
NMFS does not expect there to be any long-term adverse effect on the populations of the aforementioned dolphin species. No marine mammals are expected to be killed as a result of these activities.
Additionally, the aforementioned take estimates do not account for the implementation of mitigation measures. With the implementation of mitigation and monitoring measures, NMFS expects that the takes would be reduced further. Coupled with the fact that these impacts will likely not occur in areas and times critical to reproduction, NMFS has preliminarily determined that the total taking over the 5-year period of the regulations and subsequent LOAs from the Navy's GOMEX Range
Complex training activities will have a negligible impact on the marine mammal species and stocks present in the GOMEX Range Complex Study
Area.
Subsistence Harvest of Marine Mammals
NMFS has preliminarily determined that the issuance of 5-year regulations and subsequent LOAs (as warranted) for Navy training exercises in the GOMEX Range Complex would not have an unmitigable adverse impact on the availability of the affected species or stocks for subsistence use since there are no such uses in the specified area.
ESA
There are six ESA-listed marine mammal species that are listed as endangered under the ESA with confirmed or possible occurrence in the
GOMEX Range Complex: humpback whale, North Atlantic right whale, fin whale, blue whale, sei whale, and sperm whale. The Navy has begun consultation with NMFS pursuant to section 7 of the ESA, and NMFS will also consult internally on the issuance of an LOA under section 101(a)(5)(A) of the MMPA for training exercises in the GOMEX Range
Complex. Consultation will be concluded prior to a determination on the issuance of the final rule and an LOA.
NEPA
The Navy is preparing an Environmental Impact Statement (EIS) for the proposed GOMEX Range Complex training activities. A draft EIS was released in November 2008 and it is available at http:// www.gomexrangecomplexeis.com/. NMFS is a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the EIS. NMFS has reviewed the Draft EIS and will be working with the Navy on the Final EIS (FEIS).
NMFS intends to adopt the Navy's FEIS, if adequate and appropriate, and we believe that the Navy's FEIS will allow NMFS to meet its responsibilities under NEPA for the issuance of the 5-year regulation and LOAs for training activities in the GOMEX Range Complex. If the
Navy's FEIS is not adequate, NMFS will supplement the existing analysis and documents to ensure that we comply with NEPA prior to the issuance of the final rule or LOA.
Preliminary Determination
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat and dependent upon the implementation of the mitigation measures, NMFS preliminarily finds that the total taking from Navy training exercises utilizing underwater explosives in the GOMEX Range Complex will have a negligible impact on the affected marine mammal species or stocks. NMFS has proposed regulations for these exercises that prescribe the means of affecting the least practicable adverse impact on marine mammals and their habitat and set forth requirements pertaining to the monitoring and reporting of that taking.
Classification
This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. Section 605 (b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy is the 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. This rulemaking authorizes the take of marine mammals incidental to a specified activity. The specified activity defined in the proposed rule includes the use of underwater detonations during training activities that are only conducted by the U.S. Navy. Additionally, the proposed regulations are specifically written for ``military readiness'' activities, as defined by the NDAA, which means they cannot apply to small businesses.
Consequently, any requirements imposed by a Letter of Authorization issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the Navy. Because this action, if adopted, would directly affect the
Navy and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: July 7, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 218 is 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.
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Subpart D is added to part 218 to read as follows:
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training in the Gulf of Mexico Range Complex (GOMEX Range Complex)
Sec. 218.30 Specified activity and specified geographical area. 218.31 Permissible methods of taking. 218.32 Prohibitions. 218.33 Mitigation. 218.34 Requirements for monitoring and reporting. 218.35 Applications for Letters of Authorization. 218.36 Letters of Authorization. 218.37 Renewal of Letters of Authorization and adaptive management. 218.38 Modifications to Letters of Authorization.
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training in the Gulf of Mexico Range Complex (GOMEX Range Complex)
Sec. 218.30 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 GOMEX Range Complex Operation Areas (OPAREAs), which is located along the southern east coast of the U.S. described in
Figures 1 and 2 of the LOA application and consist of the BOMBEX Hotbox
(surface and subsurface waters) and underwater detonation (UNDET) Area
E3 (surface and subsurface waters), located within the territorial waters off Padre Island, Texas, near Corpus Christi NAS.
(1) The northernmost boundary of the BOMBEX Hotbox is located 23 nm
(42.6 km) from the coast of the Florida panhandle at latitude 30[deg]
N, the eastern boundary is approximately 200 nm (370.4 km) from the coast of the Florida peninsula at longitude 86[deg]48' W.
(2) The UNDET Area E3 is a defined surface and subsurface area located in the waters south of Corpus Christi NAS and offshore of Padre
Island, Texas. The westernmost boundary is located 7.5 nm (13.9 km) from the coast of Padre Island at 97[deg]9'33' W and 27[deg]24'26'' N at the westernmost corner. It lies entirely within the territorial waters (0 to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it lies within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a very shallow water training area with depths ranging from 20 to 26 m.
(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 detonation of the underwater explosives indicated in paragraph (c)(1)(i) of this section conducted as part of the training events indicated in paragraph (c)(1)(ii) of this section:
(i) Underwater Explosives:
(A) MK-83 (1,000 lb High Explosive bomb);
(B) MK3A2 anti-swimmer concussion grenades (0.5 lbs NEW).
(ii) Training Events:
(A) BOMBEX (Air-to-Surface)--up to 5 events over the course of 5 years (an average of 1 event per year, with 4 bombs in succession for each event);
(B) Small Arms Training with MK3A2 anti-swimmer concussion grenade--up to 30 events over the course of 5 years (an average 6 events per year, with 20 live grenades used for each event).
(2) [Reserved]
Sec. 218.31 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106 of this chapter and Sec. 218.36, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine mammals within the area described in Sec. 218.30(b), provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 218.30(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. 218.30(c) is limited to the following species, by the indicated method of take and the indicated number of times:
(1) Level B Harassment:
(i) Bottlenose dolphin (Tursiops truncatus )--95 (an average of 19 annually);
(ii) Pantropical spotted dolphin (Stenella attenuata )--130 (an average of 26 annually);
(iii) Clymene dolphin (S. clymene)--30 (an average of 6 annually);
(iv) Atlantic spotted dolphin (S. frontalis)--10 (an average of 2 annually);
(v) Spinner dolphin (S. longirostris)--135 (an average of 27 annually);
(vi) Striped dolphin (S. coeruleoalba)--40 (an average of 8 annually);
(vii) Risso's dolphin (Grampus griseus)--10 (an average of 2 annually); (viii) Melon-headed whales (Peponocephala electra)--10 (an average of 2 annually);
(2) Level A Harassment (injury):
(i) Pantropical spotted dolphin--5 (an average of 1 annually);
(ii) Spinner dolphin--5 (an average of 1 annually);
Sec. 218.32 Prohibitions.
Notwithstanding takings contemplated in Sec. 218.31 and authorized by a Letter of Authorization issued under Sec. 216.106 of this chapter and Sec. 218.36, no person in connection with the activities described in Sec. 218.30 may:
(a) Take any marine mammal not specified in Sec. 218.31(c);
(b) Take any marine mammal specified in Sec. 218.31(c) other than by incidental take as specified in Sec. 218.31(c)(1) and (2);
(c) Take a marine mammal specified in Sec. 218.31(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 this Subpart or a Letter of Authorization issued under
Sec. 216.106 of this chapter and Sec. 218.36.
Sec. 218.33 Mitigation.
(a) When conducting training activities identified in Sec. 218.30(c), the mitigation measures contained in the Letter of
Authorization issued under Sec. 216.106 of this chapter and Sec. 218.36 must be implemented. These mitigation measures include, but are not limited to:
(1) General Maritime Measures:
(i) Personnel Training--Lookouts:
(A) All bridge personnel, Commanding Officers, Executive Officers, officers standing watch on the bridge, maritime patrol aircraft aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine
Species Awareness Training (MSAT).
(B) Navy lookouts shall undertake extensive training to qualify as a watchstander in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(C) 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).
(D) Lookouts shall be trained in the most effective means to ensure quick and effective communication within the command structure to facilitate implementation of protective measures if marine species are spotted.
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(E) Surface lookouts shall scan the water from the ship to the horizon and be responsible for all contacts in their sector. In searching the assigned sector, the lookout shall always start at the forward part of the sector and search aft (toward the back). To search and scan, the lookout shall hold the binoculars steady so the horizon is in the top third of the field of vision and direct the eyes just below the horizon. The lookout shall scan for approximately five seconds in as many small steps as possible across the field seen through the binoculars. They shall search the entire sector in approximately five-degree steps, pausing between steps for approximately five seconds to scan the field of view. At the end of the sector search, the glasses shall be lowered to allow the eyes to rest for a few seconds, and then the lookout shall search back across the sector with the naked eye.
(F) At night, lookouts shall scan the horizon in a series of movements that would allow their eyes to come to periodic rests as they scan the sector. When visually searching at night, they shall look a little to one side and out of the corners of their eyes, paying attention to the things on the outer edges of their field of vision.
Lookouts shall also have night vision devices available for use.
(ii) Operating Procedures & Collision Avoidance:
(A) Prior to major exercises, a Letter of Instruction, Mitigation
Measures Message or Environmental Annex to the Operational Order shall be issued to further disseminate the personnel training requirement and general marine species mitigation measures.
(B) Commanding Officers 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 shall watch for and report to the OOD the presence of marine mammals.
(D) Personnel on lookout shall employ visual search procedures employing a scanning method in accordance with the Lookout Training
Handbook (NAVEDTRA 12968-D).
(E) After sunset and prior to sunrise, lookouts shall employ Night
Lookouts Techniques in accordance with the Lookout Training Handbook
(NAVEDTRA 12968-D).
(F) While in transit, naval vessels shall be alert at all times, use extreme caution, and proceed at a ``safe speed'' (the minimum speed at which mission goals or safety will not be compromised) so that the vessel can take proper and effective action to avoid a collision with any marine animal and can be stopped within a distance appropriate to the prevailing circumstances and conditions.
(G) When marine mammals have been sighted in the area, Navy vessels shall increase vigilance and implement measures to avoid collisions with marine mammals and avoid activities that might result in close interaction of naval assets and marine mammals. Such measures shall include changing speed and/or course direction and would be dictated by environmental and other conditions (e.g., safety or weather).
(H) Naval vessels shall maneuver to keep at least 500 yds (460 m) away from any observed whale and avoid approaching whales head-on. This requirement does not apply if a vessel's safety is threatened, such as when change of course will create an imminent and serious threat to a person, vessel, or aircraft, and to the extent vessels are restricted in their ability to maneuver. Vessels shall take reasonable steps to alert other vessels in the vicinity of the whale.
(I) Where feasible and consistent with mission and safety, vessels shall avoid closing to within 200-yd (183 m) of marine mammals other than whales (whales addressed above).
(J) 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. 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.
(K) All vessels shall maintain logs and records documenting training operations should they be required for event reconstruction purposes. Logs and records shall be kept for a period of 30 days following completion of a major training exercise.
(2) Coordination and Reporting Requirements:
(i) The Navy shall coordinate with the local NMFS Stranding
Coordinator for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that may occur at any time during or within 24 hours after completion of training activities.
(ii) The Navy shall follow internal chain of command reporting procedures as promulgated through Navy instructions and orders.
(3) Proposed Mitigation Measures for Specific At-sea Training
Events--If a marine mammal is injured or killed as a result of the proposed Navy training activities (e.g., instances in which it is clear that munitions explosions caused death), the Navy shall suspend its activities immediately and report such incident to NMFS.
(i) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs explosive bombs):
(A) This activity shall only occur in W-155A/B (hot box) area of the GOMEX Range Complex OPAREA.
(B) 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 (457 m) altitude 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.
(C) A buffer zone of a 5,100-yard (4,663-m) radius shall be established around the intended target zone. The exercises shall be conducted only if the buffer zone is clear of sighted marine mammals.
(D) At-sea BOMBEXs using live ordnance shall occur during daylight hours only.
(ii) Small Arms Training--Explosive hand grenades (such as the
MK3A2 grenades):
(A) Lookouts shall visually survey for marine mammals prior to and during exercise.
(B) A 200-yd (182-m) radius buffer zone shall be established around the intended target. The exercises shall be conducted only if the buffer zone is clear of marine mammals.
(b) [Reserved]
Sec. 218.34 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. 216.106 of this chapter and Sec. 218.36 for activities described in Sec. 218.30(c) is required to cooperate with the NMFS when monitoring the impacts of the activity on marine mammals.
(b) The Holder of the Authorization must notify NMFS immediately
(or as soon as clearance procedures allow) if
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the specified activity identified in Sec. 218.30(c) is thought to have resulted in the mortality or serious injury of any marine mammals, or in any take of marine mammals not identified in Sec. 218.31(c).
(c) The Navy must conduct all monitoring and required reporting under the Letter of Authorization, including abiding by the GOMEX Range
Complex Monitoring Plan, which is incorporated herein by reference, and which requires the Navy to implement, at a minimum, the monitoring activities summarized below.
(1) Vessel or aerial surveys.
(i) The Holder of this Authorization shall visually survey a minimum of 1 explosive event per year. One of the vessel or aerial surveys should involve NMFS-approved marine mammal observers (MMOs). If it is impossible to conduct the required surveys due to lack of training exercises, the missed annual survey requirement shall roll into the subsequent year to ensure that the appropriate number of surveys (i.e., total of five) occurs over the 5-year period of effectiveness of this subject.
(ii) When operationally feasible, for specified training events, aerial or vessel surveys shall be used 1-2 days prior to, during (if reasonably safe), and 1-5 days post detonation.
(iii) Surveys shall include any specified exclusion zone around a particular detonation point plus 2,000 yards beyond the border of the exclusion zone (i.e., the circumference of the area from the border of the exclusion zone extending 2,000 yards outwards). For vessel based surveys a passive acoustic system (hydrophone or towed array) could be used to determine if marine mammals are in the area before and/or after a detonation event.
(iv) When conducting a particular survey, the survey team shall collect:
(A) Location of sighting;
(B) Species (if not possible, indicate whale, dolphin or pinniped);
(C) Number of individuals;
(D) Whether calves were observed;
(E) Initial detection sensor;
(F) Length of time observers maintained visual contact with marine mammal;
(G) Wave height;
(H) Visibility;
(I) Whether sighting was before, during, or after detonations/ exercise, and how many minutes before or after;
(J) Distance of marine mammal from actual detonations (or target spot if not yet detonated);
(K) Observed behavior--Watchstanders shall report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming, etc.), including speed and direction;
(L) Resulting mitigation implementation--Indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long; and
(M) If observation occurs while explosives are detonating in the water, indicate munitions type in use at time of marine mammal detection.
(2) Passive acoustic monitoring--the Navy shall conduct passive acoustic monitoring when operationally feasible.
(i) Any time a towed hydrophone array is employed during shipboard surveys the towed array shall be deployed during daylight hours for each of the days the ship is at sea.
(ii) The towed hydrophone array shall be used to supplement the ship-based systematic line-transect surveys (particularly for species such as beaked whales that are rarely seen).
(iii) The array should have the capability of detecting low frequency vocalizations (
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