[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40698-40705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16296]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XC560
Takes of Marine Mammals Incidental to Specified Activities;
Office of Naval Research Acoustic Technology Experiments in the Western
North Pacific Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an Incidental Harassment Authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with provisions of the Marine Mammal Protection
Act (MMPA) as amended, notification is hereby given that an Incidental
Harassment Authorization (IHA) has been issued to the U.S. Navy's
Office of Naval Research (ONR) to take marine mammals, by harassment,
incidental to conducting Acoustic Technology Experiments (ATE) in the
western North Pacific Ocean.
DATES: This authorization is effective from July 1, 2013, through June
30, 2014.
ADDRESSES: An electronic copy of the application containing a list of
the references used in this document may be obtained by visiting the
Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this notice may be
viewed, by appointment, during regular business hours, at the
aforementioned address.
FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct
[[Page 40699]]
the Secretary of Commerce to authorize, upon request, the incidental,
but not intentional, taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and, if the taking is limited to harassment, a notice of a
proposed authorization is provided to the public for review.
An authorization for incidental takings 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 (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring, and reporting of such takings
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.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which U.S. citizens can apply for a 1-year authorization to
incidentally take small numbers of marine mammals by harassment,
provided that there is no potential for serious injury or mortality to
result from the activity. Section 101(a)(5)(D) establishes a 45-day
time limit for NMFS' review of an application followed by a 30-day
public notice and comment period on any proposed authorizations for the
incidental harassment of marine mammals. Within 45 days of the close of
the comment period, NMFS must either issue or deny the authorization.
The National Defense Authorization Act (NDAA) (Pub. L. 108-136)
removed the ``small numbers'' and ``specified geographical region''
limitations and amended the definition of ``harassment'' as it applies
to a ``military readiness activity'' to read as follows (section
3(18)(B) of the MMPA): (i) Any act that injures or has the significant
potential to injure a marine mammal or marine mammal stock in the wild
[Level A Harassment]; or (ii) Any act that disturbs or is likely to
disturb a marine mammal or marine mammal stock in the wild by causing
disruption of natural behavioral patterns, including, but not limited
to, migration, surfacing, nursing, breeding, feeding, or sheltering, to
a point where such behavioral patterns are abandoned or significantly
altered [Level B Harassment].
Summary of Request
On December 20, 2012, NMFS received an application from ONR for the
taking of marine mammals incidental to ATE in the western North Pacific
Ocean. ONR provided additional information on March 7, 2013 and NMFS
determined that the application was adequate and complete on March 7,
2013. On April 2, 2013, NMFS published a Federal Register notice (78 FR
19652) requesting comments from the public concerning ONR's proposed
activity along with NMFS' proposed IHA.
ONR will conduct ATE in one of nine provinces comprising the
western North Pacific Ocean. The activity will occur for no more than 2
weeks during the spring or summer of 2013. Transmissions from four
underwater active acoustic sources may result in the take of marine
mammals. Take, by Level B harassment only, of individuals of up to 34
species is authorized for the specified activity. A detailed
description of ONR's activity was provided in the proposed IHA (78 FR
19652, April 2, 2013).
Comments and Responses
A notice of receipt and request for public comment on the
application and proposed authorization was published on April 2, 2013
(78 FR 19652). During the 30-day public comment period, we received
comments from eighteen individuals and the Marine Mammal Commission
(Commission).
Comment 1: Numerous people suggested that the Navy's proposed
activity would result in the harm and death of too many marine mammals.
Response: The Navy did not propose, and NMFS is not authorizing,
the take of marine mammals by injury or mortality. The Navy's activity
may result in the behavioral harassment of marine mammals. It is also
important to note that the take estimates provided in the proposed IHA
(78 FR 19652, April 2, 2013) are the maximum amount of take expected
for any of the nine provinces in the western North Pacific Ocean.
Comment 2: One commenter suggested that marine mammal species were
omitted from some of the proposed action areas in the analysis (i.e.,
short-beaked common dolphin, gray whale, Pacific white-sided dolphin,
pantropical spotted dolphin, and sei whale).
Response: Short-beaked common dolphins--Short-beaked common
dolphins are a cool-temperate species and they are not expected to
occur in the South China Sea. The Smith et al (1997) paper the
commenter refers to states that skeletal remains of long-beaked common
dolphins were found in Vietnamese whale temples, but no evidence of
short-beaked common dolphins have been recorded for the region.
Furthermore, several visual surveys in the western Pacific region and
the Main Hawaiian Islands have not observed short-beaked common
dolphins (Barlow, 2006; Fulling et al., 2011). Given the lack of
observations in recent surveys, the density estimate that was derived
from data in the eastern North Pacific (Ferguson and Barlow, 2001 and
2003) was modified to reflect the expected distribution of short-beaked
common dolphins in the Sea of Japan and North Philippine Sea provinces
and the unlikely presence of short-beaked common dolphins in the South
China Sea, West Philippine Sea, Offshore Guam, and Northwest Pacific
Ocean (10-25[deg] N).
Gray whale--Western Pacific gray whales are believed to migrate
across the East China Sea to and from unknown winter breeding grounds.
The reference that the commenter cites (Omura, 1988) has anecdotal
observations of gray whales in the Yellow Sea in May (spring). There is
no indication if any observations in summer months and western Pacific
gray whales are known to occur in more northern areas during the summer
(Meier et al., 2007; Weller et al., 2002).
Pacific white-sided dolphins--Pacific white-sided dolphins display
a north-south migratory pattern, moving from warm-temperate waters in
winter to cool-temperate waters in summer. The commenter cites Hayano
et al. (2004), which states, ``In the Sea of Japan, the dolphins were
observed mostly in coastal waters off Iki Island in January-March, and
off the central-northern Japan in June-July, suggesting they migrate
northward along the coast of Japan in spring to off the western coast
of Hokkaido and/or to the Sea of Okhotsk where they summer.'' The cited
reference of Miyashita (1993) does not include any reference to Pacific
white-sided dolphins. Pacific white-sided dolphins are not expected to
be in the southern half of the Sea of Japan during summer months.
Pantropical spotted dolphins--Pantropical spotted dolphins inhabit
tropical and subtropical waters, from south of approximately 37[deg] N.
The map of sightings in June from Miyashita (1993) (as cited by the
commenter) show them south of 35[deg] N. As the East of Japan province
is at the northern limit of their distributional range, they are not
expected in this region during the cold-water months of spring, but may
be present during summer months.
[[Page 40700]]
Sei whale--The papers that the commenter cited on passive acoustic
recordings (Stafford et al., 2001; Stafford, 2003) do not refer to sei
whales. As for the two cited papers on recent surveys (DoN, 2007;
Fulling et al., 2011), they both refer to the same survey that occurred
in the offshore Guam region in January-April 2007. There were eight
sightings of sei whales during these winter months, but there is no
evidence to suggest that sei whales are found offshore Guam in summer
months.
Comment 3: One commenter stated that harassment estimates were
omitted for some species in the area (i.e., Kogia spp. in the East
China Sea and Risso's dolphin in the South China Sea).
Response: The value of 0.0000 for both species' was inadvertently
left out of the table for Level A harassment. This does not change
NMFS' analysis or authorized take amounts.
Comment 4: One commenter suggested that the harassment analysis was
based on calculations using an out-of-date database (Generalized
Digital Environmental Model (GDEM) 2.5) and inappropriate model.
Response: The Navy compared sound velocity profiles between GDEM
2.5 and 3.0 at each of the nine modeling sites. There were no
significant differences observed in the profiles at any of the nine
sites. The Navy reran the propagation model with GDEM 3.0 data at the
experiment site for multiple odontocetes, and the harassment estimates
using GDEM 2.5 were more conservative. It is important to note that the
Navy's activity is taking place in deep water areas, so the sound speed
variability between the two databases for this activity is negligible.
Future analyses of this nature will utilize GDEM 3.0 data.
The commenter suggested that the High Frequency Bottom Loss (HFBL)
model should have been used; however, this model is not appropriate for
analyzing sources below 1.5 kHz. Moreover, the Navy's activity will be
conducted in deep water so that bottom loss and type are negligible
considerations.
Comment 5: The Commission recommended that NMFS assess the
potential risk to marine mammals from the ATE by requiring ONR to (1)
provide the best available mean density estimates plus two standard
deviations for the densities based on surveys in areas other than the
locations where the experiments could occur; (2) describe any known or
suspected sources of bias associated with the use of those data; and
(3) reestimate the numbers of takes using those mean densities plus two
standard deviations.
Response: NMFS disagrees that the density estimates need to be
reevaluated. The estimation of take already overestimates what is
likely to occur because the Navy considered a worst-case scenario of
nine different locations (only one of which the activity will actually
occur in). Furthermore, the analysis does not take into consideration
the required mitigation and monitoring measures in the IHA.
Comment 6: The Commission recommended that NMFS require ONR to use
a third clearance time category of 60 minutes for deep-diving species
after a delay or shut down, if the animal is not observed to have left
the mitigation zone.
Response: NMFS disagrees that the clearance time should be
lengthened for deep-diving species for the following reasons: (1) Just
because an animal can dive for longer than 30 minutes does not mean
that they always do, so the 60-minute delay would only potentially add
value in instances when animals had remained underwater for more than
30 minutes; (2) The animal would need to have stayed in the immediate
vicinity of the sound source for an hour. Considering the maximum area
that both the vessel and the animal could cover in an hour, it is
improbable that this would randomly occur. Moreover, considering that
many animals have been shown to avoid both acoustic sources and ships
without acoustic sources, it is improbable that a deep-diving cetacean
(as opposed to a dolphin that might bow ride) would choose to remain in
the immediate vicinity of the acoustic source; and (3) Visual observers
are not always able to differentiate species to the degree that would
be necessary to implement this measure. NMFS does not believe that
increasing the clearance time to 60 minutes will add to the protection
of marine mammals in the vast majority of cases, and therefore, we have
not required it.
Comment 7: The Commission recommended that NMFS require ONR to use
passive acoustic monitoring continually during the experiments to
supplement daytime visual monitoring.
Response: NMFS disagrees that passive acoustic monitoring should be
required during daytime hours. However, ONR will use passive acoustic
monitoring at night and during other periods of decreased visual
observation capabilities. NMFS does not believe that supplementing
visual monitoring with passive acoustic monitoring during daytime hours
will add to the protection of marine mammals in the vast majority of
cases, as the location of a marine mammal cannot be identified using a
single sound recorder.
Marine Mammals in the Area of the Specified Activity
Thirty-four marine mammal species may potentially occur in at least
one of the nine provinces comprising the western North Pacific Ocean in
which the ATE may occur. Eight of these species are listed as
endangered under the U.S. Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) and depleted under the MMPA: blue whale
(Balaenoptera musculus), fin whale (Balaenoptera physalus), gray whale
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae), North
Pacific right whale (Eubalaena japonica), sei whale (Balaenoptera
borealis), sperm whale (Physeter macrocephalus), and Hawaiian monk seal
(Monachus schauinslandi). Although 34 species of marine mammals may
potentially occur in the waters of the nine western North Pacific
provinces, the two species of Kogia are often considered together due
to the difficulty in identifying these animals to the species level at
sea and the sparse information that is known about the individual
species. The 34 species considered include eight mysticetes, 25
odontocetes, and one pinniped (Table 1). Detailed descriptions of these
species are provided in the section 4 of ONR's application and
summarized in the Federal Register notice for a proposed IHA (78 FR
19652, April 2, 2013) and not repeated here. Further information on all
the species can also be found in the NMFS Stock Assessment Reports
(SAR) online: http://www.nmfs.noaa.gov/pr/pdfs/sars.
[[Page 40701]]
Table 1--Marine Mammals Potentially Occurring in the Nine Provinces of the Western North Pacific Where the ATE
May Be Conducted and Their Status
----------------------------------------------------------------------------------------------------------------
Common name Scientific name ESA and MMPA status
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Blue Whale............................. Balaenoptera musculus..... Endangered/Depleted.
Bryde's Whale.......................... Balaenoptera edeni. ...........................................
Common Minke Whale..................... Balaenoptera ...........................................
acutorostrata.
Fin Whale.............................. Balaenoptera physalus..... Endangered/Depleted.
Gray Whale............................. Eschrichtius robustus..... Endangered/Depleted.\1\
Humpback Whale......................... Megaptera novaeangliae.... Endangered/Depleted.
North Pacific Right Whale.............. Eubalaena japonica........ Endangered/Depleted.
Sei Whale.............................. Balaenoptera borealis..... Endangered/Depleted.
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Baird's Beaked Whale................... Berardius bairdii. ...........................................
Blainville's Beaked Whale.............. Mesoplodon densirostris. ...........................................
Common Bottlenose Dolphin.............. Tursiops truncatus. ...........................................
Cuvier's Beaked Whale.................. Ziphius cavirostris. ...........................................
Dall's Porpoise........................ Phocoenoides dalli. ...........................................
False killer whale..................... Pseudorca crassidens.\2\ ...........................................
Fraser's Dolphin....................... Lagenodelphis hosei. ...........................................
Ginkgo-toothed Beaked Whale............ Mesoplodon ginkgodens. ...........................................
Hubbs' Beaked Whale.................... Mesoplodon carhubbsi. ...........................................
Killer Whale........................... Orca orcinus. ...........................................
Kogia spp.............................. ...........................................
Longman's Beaked Whale................. Indopacetus pacificus. ...........................................
Melon-headed Whale..................... Peponocephala electra. ...........................................
Pacific White-sided Dolphin............ Lagenorhynchus ...........................................
obliquidens.
Pantropical Spotted Dolphin............ Stenella attenuata ...........................................
Pygmy Killer Whale..................... Feresa attenuata. ...........................................
Risso's Dolphin........................ Grampus griseus. ...........................................
Rough-toothed Dolphin.................. Steno bredanensis. ...........................................
Short-beaked Common Dolphin............ Delphinus delphis. ...........................................
Short-finned Pilot Whale............... Globicephala ...........................................
macrorhynchus.
Sperm Whale............................ Physeter macrocephalus.... Endangered/Depleted.
Spinner Dolphin........................ Stenella longirostris. ...........................................
Stejneger's Beaked Whale............... Mesoplodon stejnegeri. ...........................................
Striped Dolphin........................ Stenella coeruleoalba. ...........................................
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Hawaiian Monk Seal..................... Monachus schauinslandi.... Endangered/Depleted.
----------------------------------------------------------------------------------------------------------------
\1\ Only the western Pacific population is listed as endangered under the ESA.
\2\ As a species, the false killer whale is not listed under the ESA; however, the insular Main Hawaiian Islands
distinct population segment (DPS) of false killer whales is listed as endangered under the ESA.
Potential Effects of the Specified Activity on Marine Mammals
This section of the proposed rule included a detailed account of
potential effects (78 FR 19652, April 2, 2013), including tolerance,
masking, behavioral disturbance, hearing impairment, non-auditory
physiological effects, stranding, and mortality. In summary, acoustic
stimuli generated by underwater signals from no more than four acoustic
sources have the potential to cause Level B harassment of marine
mammals in the action area. The impacts to marine mammals from these
sources are expected to be limited to some masking effects and
behavioral responses in the areas ensonified by the acoustic sources.
Permanent hearing impairment, in the unlikely event that it occurs,
would constitute injury, but temporary threshold shift (TTS) is
considered a type of Level B harassment (Southall et al., 2007).
Although the possibility cannot be entirely excluded, it is unlikely
that the ATE will result in any cases of temporary or permanent hearing
impairment, or any significant non-auditory physical or physiological
effects. Based on the available data and studies described here, some
behavioral disturbance is possible, but NMFS expects the disturbance to
be localized and short-term.
Anticipated Effects on Marine Mammal Habitat
No ESA-designated critical habitats of any marine mammal species
are located in or near the waters of the nine western North Pacific
Ocean provinces in which the ONR ATE may be conducted. There are also
no international marine mammal protected areas located within the
vicinity of the experiment area. During the ONR ATE, only acoustic
transducers and receivers as well as standard oceanographic equipment
will be deployed. Experimental systems are planned to be retrieved
after data collection has been completed. The acoustic and
oceanographic instrumentation that would be deployed operates in
accordance with all applicable international rules and regulations
related to environmental compliance, especially for discharge of
potentially hazardous materials. Therefore, no discharges of pollutants
will result from the deployment and operation of the acoustic and
oceanographic instruments and systems.
During the ONR ATE, deployment and operation of the sound sources
will
[[Page 40702]]
result in no physical alterations to the marine environment other than
addition of elevated underwater sound levels, which may have some
effect on marine mammals. Any increase in underwater sound levels will
be temporary (lasting no more than 2 weeks) and limited in geographic
scope. A small number of marine mammals present near the proposed
activity may be temporarily displaced due to sound source
transmissions. However, concentrations of marine mammals and/or marine
mammal prey species are not expected to be encountered in or near the
vicinity of the waters in the western North Pacific provinces in which
the ONR ATE may occur. There are no critical feeding, breeding, or
migrating areas for any marine mammal species that may occur in the
action area. No long-term impacts associated with the increase in
ambient noise levels are expected.
Mitigation Measures
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where
applicable, the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and the
availability of such species or stock for taking for certain
subsistence uses (where relevant).
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
ONR's application are considered military readiness activities.
The following mitigation measures will be implemented during the
ONR ATE:
Vessel Movement
ONR will maneuver the research vessel, as feasible, to avoid
closing within 457 m (1,499 ft) of a marine mammal. Standard operating
procedures for the research vessel will be to avoid collision with
marine mammals, including maintaining a minimum safe maneuvering
distance from detected animals.
Mitigation Zone
ONR will use a 1-km mitigation zone to avoid take by Level A
harassment and reduce the potential impacts to marine mammals from ONR
ATE. Mitigation zones are measured as the radius from a source and
represent a distance that visual observers will monitor during daylight
hours to ensure that no marine mammals enter the designated area. The
mitigation zone will be monitored for 30 minutes before the active
acoustic source transmissions begin and will continue until 30 minutes
after the active acoustic source transmissions are terminated, or 30
minutes after sunset, whichever comes first. Visual detections of
marine mammals will be communicated immediately for information
dissemination and appropriate action, as described directly below.
Delay and Shut-Down Procedures
During daytime transmissions, ONR will immediately delay or shut
down active acoustic source transmissions if a marine mammal is
visually detected within the 1 km exclusion zone. Based on NMFS'
recommendation, transmissions will not commence/resume for 15 minutes
(for small odontocetes and pinnipeds) or 30 minutes (for mysticetes and
large odontocetes) after the animal has moved out of the exclusion zone
or there has been no further visual detection of the animal. During
nighttime transmissions, ONR will immediately delay or shut down active
acoustic source transmissions if a marine mammal is detected using
passive acoustic monitoring. Based on NMFS' recommendation,
transmissions will commence/resume 15 minutes (for small odontocetes
and pinnipeds) or 30 minutes (for mysticetes and large odontocetes)
after there has been no further detection of the animal.
NMFS has carefully evaluated the applicant's proposed mitigation
measures and considered a range of other measures in the context of
assuring that NMFS prescribes the means of effecting the least
practicable 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:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals;
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned; and
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.
Based on our evaluation of the applicant's proposed measures and
those proposed by NMFS, we have determined that the above mitigation
measures provide the means of effecting the least practicable adverse
impact on marine mammal 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.
Monitoring and Reporting
In order to issue an ITA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth, where applicable,
``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 ITAs 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 in the proposed action area.
Monitoring
ONR will conduct marine mammal monitoring during the specified
activity for the purpose of implementing required mitigation and to
provide information on species presence and abundance in the action
area. Protected species observers (both visual and acoustic) will
maintain a log that includes duration of time spent searching/listening
for marine mammals; numbers and species of marine mammals detected; any
unusual marine mammal behavior; and the date, time, and location of the
animal and any sonobuoy deployments. ONR's monitoring plan is described
below.
Vessel-based Visual Monitoring--ONR will continuously monitor for
marine mammals when active acoustic sources are being used during
daylight hours. Two visual observers will be on effort during active
ATE source transmissions occurring during daylight hours. One observer
will be positioned on the deck level above the bridge, about 12 m above
the water line, while the second observer will be located on the bridge
level, about 9.8 m above the water line. Protected species observers
will be trained for visually detecting and identifying marine mammal
species. Observers will begin monitoring 30 minutes before the active
acoustic source transmissions are scheduled to begin and will continue
[[Page 40703]]
until 30 minutes after the active acoustic source transmissions are
terminated, or 30 minutes after sunset, whichever comes first.
Passive Acoustic Monitoring--ONR will conduct passive acoustic
monitoring from the vessel when active acoustic sources are deployed
during nighttime (i.e., no more than 35 hours total) and other periods
of decreased visual observation capabilities. Passive acoustic
monitoring will include listening for vocalizations and visually
inspecting spectrograms of radio frequency-transmitted signals from a
deployed AN/SSQ-53 DIFAR sonobuoy by personnel trained in detecting and
identifying marine mammal sounds. Passive acoustic monitoring will
begin 30 minutes before transmissions are scheduled to begin and
continue until 30 minutes after transmissions are terminated, or 30
minutes after sunrise, whichever occurs first.
If a passively detected sound is estimated to be from a marine
mammal, the acoustic observer will notify the appropriate personnel and
shutdown procedures will be implemented. For any marine mammal
detection, the Test Director will order the immediate delay/suspension
of the active acoustic source transmissions and/or deployment. Based on
NMFS' recommendation, transmissions may commence/resume 15 minutes (for
small odontocetes) or 30 minutes (for mysticetes and large odontocetes)
after there has been no further detection of the animal.
Reporting
Protected species observers (both visual and acoustic) will
maintain a log that includes duration of time spent searching/listening
for marine mammals; numbers and species of marine mammals detected; any
unusual marine mammal behavior; and the date, time, and location of the
animal and any sonobuoy deployments. Data would be used to estimate
numbers of animals potentially `taken' by harassment (as defined in the
MMPA). Based on NMFS' recommendation, protected species observers will
record the behavioral state of all marine mammals observed and the
status of the active acoustic source when observers see an animal.
ONR will submit two reports to NMFS within 90 days after the end of
the proposed activity: one unclassified report and one classified
report. The reports will describe the operations that were conducted
and sightings of marine mammals near the operations. The reports will
provide full documentation of methods, results, and interpretation
pertaining to all monitoring. The 90-day reports will summarize the
dates and locations of active acoustic source transmissions, and all
marine mammal sightings (dates, times, locations, activities,
associated active acoustic transmissions). The reports will also
include estimates of the number and nature of exposures that could
result in `takes' of marine mammals.
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA,
such as an injury (Level A harassment), serious injury, or mortality
(e.g., ship-strike, gear interaction, etc.), ONR would immediately
cease the specified activities and immediately (as soon as possible,
according to security protocol) report the incident to the Chief of the
Permits and Conservation Division, Office of Protected Resources, NMFS.
The report must include the following information:
Time, date, and location (latitude/longitude) of the incident;
Name and type of vessel involved;
Vessel's speed during and leading up to the incident;
Description of the incident
Status of all sound sources used in the 24 hours preceding the
incident;
Water depth;
Environmental conditions (e.g., wind speed and direction, Beaufort
sea state, cloud cover, and visibility);
Description of all marine mammal observations in the 24 hours
preceding the incident;
Species identification or description of the animal(s) involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s) (if equipment is
available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with ONR to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. ONR may not resume their
activities until notified by NMFS via letter, email, or telephone.
In the event that ONR discovers an injured or dead marine mammal,
and the lead protected species observer determines that the cause of
the injury or death is unknown and the death is relatively recent
(i.e., in less than a moderate state of decomposition as described in
the next paragraph), ONR would immediately report the incident to the
Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS. The report must include the same information
identified in the paragraph above. Activities may continue while NMFS
reviews the circumstances of the incident. NMFS would work with ONR to
determine whether modifications in the activities are appropriate.
In the event that ONR discovers an injured or dead marine mammal,
and the lead protected species observer determines that the injury or
death is not associated with or related to the activities authorized in
the IHA (e.g., previously wounded animal, carcass with moderate to
advanced decomposition, or scavenger damage), ONR would report the
incident to the Chief of the Permits and Conservation Division, Office
of Protected Resources, NMFS within 24 hours of the discovery. ONR
would provide photographs or video footage (if available) or other
documentation of the stranded animal sighting to NMFS.
Estimated Take by Incidental Harassment
With respect to military readiness activities, section 3(18)(B) of
the MMPA defines ``harassment'' as: 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].
This section of the proposed rule included a detailed description
of the Navy's analysis and how take estimates were calculated (78 FR
19652, April 2, 2013). That information has not changed and is not
repeated here. In summary, only take by Level B harassment is
anticipated and authorized as a result of the specified activity.
Acoustic stimuli (i.e., increased underwater sound) generated during
the transmission of active acoustic sources have the potential to cause
temporary, short-term changes in marine mammal behavior. There is no
evidence that the planned activities will result in injury, serious
injury, or mortality within the specified geographic area. The required
mitigation and monitoring measures are expected to minimize any
potential risk for injury or mortality. The maximum estimated take
amounts are summarized in Table 2 below.
[[Page 40704]]
Table 2--Maximum Estimated Take From Exposure to Acoustic Sources Employed During the ONR ATE by Marine Mammal
Species Potentially Occurring in the Nine Provinces of the Western North Pacific Ocean
----------------------------------------------------------------------------------------------------------------
Maximum MMPA Level A Maximum MMPA Level B Authorized take by
Marine mammal species harassment harassment Level B harassment
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
Blue Whale........................... 0.0000 0.0156 1
Bryde's Whale........................ 0.0000 1.9562 2
Common Minke Whale................... 0.0000 7.70636 8
Fin Whale............................ 0.0000 1.70956 2
Gray Whale........................... 0.0000 0.0038 1
Humpback Whale....................... 0.0000 1.6395 2
North Pacific Right Whale............ 0.0000 0.0214 1
Sei Whale............................ 0.0000 1.0446 2
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Baird's Beaked Whale................. 0.0000 0.6882 1
Blainville's Beaked Whale............ 0.0000 0.5985 1
Common Bottlenose Dolphin............ 0.0000 23.7805 24
Cuvier's Beaked Whale................ 0.0000 2.2811 3
Dall's Porpoise...................... 0.0000 53.0706 54
Dwarf Sperm Whale.................... 0.0000 4.2209 5
False Killer Whale................... 0.0000 7.3891 8
Fraser's Dolphin..................... 0.0000 5.7854 6
Ginkgo-toothed Beaked Whale.......... 0.0000 0.5985 1
Hubbs' Beaked Whale.................. 0.0000 0.1928 1
Killer Whale......................... 0.0000 0.1600 1
Kogia spp............................ 0.0000 2.2840 3
Longman's Beaked Whale............... 0.0000 0.2993 1
Melon-headed Whale................... 0.0000 15.4891 16
Mesoplodon spp....................... 0.0000 0.1928 1
Pacific White-sided Dolphin.......... 0.0000 7.5305 8
Pantropical Spotted Dolphin.......... 0.0000 35.8584 36
Pygmy Killer Whale................... 0.0000 4.3103 5
Pygmy Sperm Whale.................... 0.0000 1.7203 2
Risso's Dolphin...................... 0.0000 11.3736 12
Rough-toothed Dolphin................ 0.0000 5.8877 6
Short-beaked Common Dolphin.......... 0.0000 86.3962 87
Short-finned Pilot Whale............. 0.0000 18.7461 19
Sperm Whale.......................... 0.0000 1.6701 2
Spinner Dolphin...................... 0.0000 2.1661 3
Stejneger's Beaked Whale............. 0.0000 0.2855 1
Striped Dolphin...................... 0.0000 23.9042 24
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Hawaiian Monk Seal................... 0.0000 0.0067 1
----------------------------------------------------------------------------------------------------------------
Negligible Impact Analysis and Determination
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.'' In making a negligible impact determination,
NMFS considers a variety of factors, including, but not limited to:
The number of anticipated mortalities;
The number and nature of anticipated injuries;
The number, nature, intensity, and duration of Level B
harassment; and
The context in which the takes occur.
As mentioned previously, NMFS estimates that 34 species of marine
mammals may be affected by Level B harassment during the ONR ATE. No
injuries, serious injuries, or mortalities are anticipated to occur as
a result of the specified activity, and none are authorized.
Additionally, for reasons presented earlier in this document, temporary
or permanent hearing impairment is not anticipated to occur during the
specified activity. Only short-term behavioral disturbance is
anticipated to occur due to the limited duration of active acoustic
transmissions and the estimated marine mammal densities in the area.
ONR's specified activity will occur for about 2 weeks and active
acoustic sources will operate intermittently during this time. Due to
the nature, degree, and context of behavioral harassment anticipated,
the activity is not expected to impact rates of recruitment or
survival. Furthermore, there are no critical feeding, breeding, or
migrating areas for any of the species that may be found there at the
time of the activity.
NMFS has determined, provided that the aforementioned mitigation
and monitoring measures are implemented, that the impact of conducting
the ONR ATE, may result, at worst, in a temporary modification in
behavior and/or low-level physiological effects (Level B harassment) of
certain species of marine mammals. Of the ESA-listed marine mammals
that may potentially occur in the action area, North Pacific right
whale populations lack sufficient data to determine trends in abundance
and sperm whale populations are not
[[Page 40705]]
well known in the southern hemisphere. While behavioral modifications,
including temporarily vacating the area during the transmission of
active acoustic transmissions, may be made by these species to avoid
the resultant acoustic disturbance, the availability of alternate areas
and the short and sporadic duration of the demonstration, have led NMFS
to determine that this action will have a negligible impact on the
species in the specified geographic region.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS finds that ONR's specified activity may result in the
incidental take of marine mammals, by Level B harassment only, and that
the total taking from the ATE will have a negligible impact on the
affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks will not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
Endangered Species Act
Of the species of marine mammals that may occur in the proposed
demonstration area, eight are listed as endangered under the ESA: blue
whale, fin whale, gray whale, humpback whale, North Pacific right
whale, sei whale, sperm whale, and Hawaiian monk seal. Under section 7
of the ESA, ONR initiated formal consultation with NMFS, Office of
Protected Resources, Endangered Species Act Interagency Cooperation
Division, on their specified activity. NMFS' Office of Protected
Resources, Permits and Conservation Division, also initiated formal
consultation under section 7 of the ESA with NMFS' Office of Protected
Resources, Endangered Species Act Interagency Cooperation Division.
NMFS issued a Biological Opinion concluding that the Navy's action is
not likely to jeopardize the continued existence of endangered blue,
fin, gray, humpback, North Pacific right, sei, or sperm whales or
Hawaiian monk seals, or adversely modify critical habitat designated
for those species.
National Environmental Policy Act (NEPA)
ONR prepared a draft Overseas Environmental Assessment (OEA) to
address the potential environmental impacts that could occur as a
result of the proposed activity. To meet NMFS' National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et seq.) requirements for the issuance
of an IHA to ONR, NMFS prepared an independent NEPA analysis, which
included an EA and Finding of No Significant Impact (FONSI). These
documents are available on our Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS determined that issuance of the IHA will
not significantly impact the quality of the human environment and that
preparation of an Environmental Impact Statement is not required.
Dated: June 28, 2013.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2013-16296 Filed 7-5-13; 8:45 am]
BILLING CODE 3510-22-P