Takes of Marine Mammals Incidental to Specified Activities; Office of Naval Research Acoustic Technology Experiments in the Western North Pacific Ocean, 40698-40705 [2013-16296]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40698-40705]
From the Federal Register Online via the Government Printing 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: https://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: https://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 https://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