Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Joint Logistics Over-the-Shore Training Activities in Virginia and North Carolina, 2636-2648 [2015-00558]
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[Docket No. 140909771–4771–01]
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FOR FURTHER INFORMATION CONTACT:
Shane Guan, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
RIN 0648–BE51
Availability
Takes of Marine Mammals Incidental to
Specified Activities; U.S. Navy Joint
Logistics Over-the-Shore Training
Activities in Virginia and North
Carolina
A copy of the Navy’s application may
be obtained by visiting the internet at:
https://www.nmfs.noaa.gov/pr/permits/
incidental.htm. The Navy’s Draft
Environmental Assessment for Joint
Logistics Over-the-Shore Training (EA)
will be made available to the public on
January 6, 2015, during the comment
period for this proposed rule.
Documents cited in this notice may also
be viewed, by appointment, during
regular business hours, at the
aforementioned address.
of the rule that are not the subject of an
adverse comment.
We do not plan to open a second
comment period, so anyone interested
in commenting should do so at this
time. If we do not receive adverse
comments, no further activity is
planned. For further information, please
see the direct final action.
Dated: December 2, 2014.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2015–00642 Filed 1–16–15; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 218
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of proposed rule; request
for comments and information.
AGENCY:
NMFS has received a request
from the U.S. Navy (Navy) for
authorization to take marine mammals
incidental to the Joint Logistics Overthe-Shore (JLOTS) training activities
conducted in Virginia and North
Carolina, from June 2015 through June
2020. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is
requesting comments on its proposal to
issue regulations and a five-year Letter
of Authorization (LOA) to the Navy to
incidentally harass marine mammals.
DATES: Comments and information must
be received no later than February 19,
2015.
ADDRESSES: You may submit comments,
identified by NOAA–NMFS–2015–0004,
by either of the following methods:
• Electronic submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal https://
www.regulations.gov.
• Hand delivery of mailing of paper,
disk, or CD–ROM comments should be
addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service, 1315 East-
rljohnson on DSK3VPTVN1PROD with PROPOSALS
SUMMARY:
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Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce to allow,
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 either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
authorization is provided to the public
for review.
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
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from the specified activity that cannot
be reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival.’’
The National Defense Authorization
Act of 2004 (NDAA) (Pub. L. 108–136)
removed the ‘‘small numbers’’ and
‘‘specified geographic region’’
limitations indicated above and
amended the definition of ‘‘harassment’’
as applied to ‘‘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 August 20, 2014, NMFS received
an application from the Navy requesting
a letter of authorization (LOA) for the
take of bottlenose and Atlantic spotted
dolphins incidental to the Navy’s JLOTS
training activities in nearshore waters at
the Joint Expeditionary Base (JEB) Little
Creek-Fort Story in Virginia and at
Camp Lejeune in North Carolina. The
Navy is requesting regulations that
would establish a process for
authorizing take, via a 5-year LOA, of
marine mammals incidental to training
activities. These activities are classified
as military readiness activities. The
Navy states that these activities may
result in take of marine mammals from
noise from temporary pier construction
associated with the JLOTS training
activities. The Navy requests to take
bottlenose and Atlantic spotted
dolphins by Level B harassment.
Description of the Specified Activity
JLOTS training is the movement of
cargo and personnel from ships to shore
in areas that do not have existing fixed
port facilities. Among the several
coordinated exercises of the JLOTS
training, the only activity that has the
potential to harass marine mammals is
the construction of the Elevated
Causeway System, Modular [ELCAS
(M)] by introducing noise into the water.
The ELCAS (M) is a temporary pier
constructed from the beach into the
water past the surf zone. It provides a
means of delivering containers,
vehicles, and bulk cargo ashore without
lighterage craft having to enter the surf
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zone. The ELCAS (M) consists of a
series of 24- by 40-ft. (7.3- by 12.2-m)
pontoon sections joined together and
supported by piles driven into the sea
floor.
To build the pier, piles are driven into
the sand with a diesel-powered impact
hammer. The piles used typically are
hollow, half-inch steel uncapped piles,
24 inches (0.5 m) in diameter, and can
be of various lengths (38 ft. [11.6 m], 57
ft. [17.4 m], or 76 ft. [23.2 m]) depending
on local bathymetry. The depth to
which the piles are driven is between 30
and 40 ft. (9.1 to 12.2 m) and
installation takes approximately 15
minutes per pile. Typically, 6 piles
would be installed in a day. Two pile
drivers are generally used, but not
simultaneously: while one is driving a
pile, the other is being re-positioned for
the next pile. Construction may take up
to 20 days. A pier length of 1,500 ft (457
m) is typical for training, with
approximately 119 supporting piles.
Once the ELCAS (M) is constructed,
offloading operations are similar to
those of a conventional pier. Containerhandling operations consist primarily of
transferring containers from lighterage
vessels (e.g., Landing Craft Utility or
Landing Craft Mechanized) to the pier.
Empty trucks or trailers are driven onto
a turntable at the seaward end of the
ELCAS (M) and are loaded with
containers using the same cranes from
construction. The ELCAS (M) is wide
enough to accommodate two-way traffic.
Rolling stock may be lifted by crane to
the pier and driven to the beach as well.
Operations typically involve the use of
two forklifts and an average of six cargo
trucks a day during the exercise. Power
for the operation of the turntable and
the lighting of the ELCAS (M) is
provided by up to two 30-kilowatt (kW)
and two 100-kW generators.
The ELCAS (M) is dismantled by
removing the pontoon sections and
extracting the piles with a vibratory
hammer, which takes approximately 6
minutes per pile, over the course of 10
days. Typically, 12 piles are removed in
a day. On the beach, the modified area
is re-graded to its original elevation.
Duration and Location
The JLOTS training areas are in
nearshore waters at the JEB Little CreekFort Story in Virginia and at Camp
Lejeune in North Carolina. The primary
activity area consists of nearshore
waters where the ELCAS (M) training
exercises would take place.
Description of Marine Mammals in the
Area of the Specified Activities
There are six marine mammal species
under NMFS jurisdiction with possible
or known occurrence in the Navy’s
JLOTS training area at the JEB Little
Creek-Fort Story in Virginia and at
Camp Lejeune in North Carolina, as
indicated in Table 1. Four marine
mammal species are listed under the
Endangered Species Act: North Atlantic
right whale, humpback whale, sei
whale, and fin whale.
TABLE 1—MARINE MAMMAL OCCURRENCE WITHIN THE JLOTS TRAINING AREAS OFF THE ATLANTIC COAST
Density in activity area 2
(per km2)
Status
Common name
Scientific name
Mysticetes:
fin whale ......
Stock abundance best
(CV)/Min
Stock(s)
ESA
MMPA
Balaenoptera
physalus.
E
strategic; depleted.
Western North
Atlantic.
humpback
whale.
Megaptera
novaeangliae.
E
depleted .............
Gulf of Maine ......
North Atlantic
right whale.
Eubalaena
glacialis.
E
strategic; depleted.
Western North
Atlantic.
sei whale .....
Balaenoptera borealis.
E
strategic; depleted.
.......
............................
.......
strategic ..............
Odontocetes:
Atlantic spot- Stenella frontalis
ted dolphin.
bottlenose
Tursiops
dolphin 3.
truncatus.
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823 (0)/823
Camp Lejeune
0.00
0.000034
0.00009
444 (0)/(444)
0.000033
Nova Scotia ........
strategic ..............
strategic; depleted.
3,522 (0.27)/2,817
JEB Little
Creek-Fort
Story
357 (0.52)/236
0.000101
Western North
Atlantic.
Northern North
Carolina Estuarine System.
Southern North
Carolina Estuarine System.
Western North
Atlantic Southern Migratory
Coastal.
26,798 (0.66)/16,151
0.0007728
0.153
950 (0.23)/785
0.159
0.169871
2,454 (0.53)/1,614
........................
........................
12,482 (0.32)/9,591
........................
........................
* E = endangered under the ESA.
NMFS has reviewed the information
complied by the Navy on the
abundance, status, and distribution of
marine mammal species in the waters of
the JLOTS training areas of the North
Atlantic coast, which was derived from
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peer reviewed literature, the Navy
Marine Resource Assessments, and
NMFS Stock Assessment Reports.
NMFS considers this information to be
the best available science with which
we can conduct the analyses necessary
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to propose these regulations and a fiveyear LOA. This information may be
viewed in the Navy’s LOA application
and the Navy’s Draft EA (see
Availability). Additional information is
available in the NMFS Stock
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Assessment Reports, which may be
viewed at: https://www.nmfs.noaa.gov/
pr/sars/species.htm.
Fin whales, North Atlantic right
whale, humpback whale, and sei whale
are considered rare in the JLOTS
training areas. These mysticete whales
tend to be distributed in relatively
deeper waters outwards to the offshore
environment. Occurrences of these
species in the shallow nearshore waters
off JEB Little Creek-Fort Story or Camp
Lejeune are expected to be rare. Due to
their extremely rare occurrence within
the training areas, the Navy and NMFS
do not anticipate any take of fin, North
Atlantic right, humpback, or sei whales.
Therefore, these species are not
addressed further in this proposed rule.
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Bottlenose Dolphin
Along the U.S. east coast, the
bottlenose dolphin stock structure is
well studied. Of the management stocks
identified by NMFS, three may occur in
the JLOTS activity area: The Northern
North Carolina Estuarine System stock,
the Southern North Carolina Estuarine
System stock, and the Western North
Atlantic Southern Migratory Coastal
stock. The bottlenose dolphin occurs in
tropical to temperate waters of the
Atlantic Ocean as well as inshore,
nearshore, and offshore waters of the
Gulf of Mexico and U.S. east coast. They
occur in most enclosed or semi-enclosed
seas in habitats ranging from shallow,
murky, estuarine waters to deep, clear
offshore waters in oceanic regions
(Jefferson et al. 2008; Wells et al. 2009).
Bottlenose dolphins are also often found
in bays, lagoons, channels, and river
mouths and are known to occur in very
deep waters of some ocean regions.
Open ocean populations occur far from
land; however, population density
appears to be highest in nearshore areas
(Scott and Chivers 1990). They are
common in the lower Chesapeake Bay
and in Onslow Bay (Chesapeake Bay
Program 2012; McAlarney et al. 2011).
Bottlenose dolphins typically occur in
groups of 2–15 individuals, but
significantly larger groups have also
been reported (Shane et al. 1986; Kerr et
al. 2005). Coastal bottlenose dolphins
typically exhibit smaller group sizes
than the larger offshore form, as water
depth appears to be a significant
influence on group size (Shane et al.
1986). Shallow, confined areas typically
support smaller group sizes, some
degree of regional site fidelity, and
limited movement patterns (Shane et al.
1986; Wells et al. 1987). Bottlenose
dolphins have a varied diet, feeding on
small fish, crustaceans, and squid
(Wells and Scott 2002).
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An Unusual Mortality Event (UME)
was declared for bottlenose dolphins
along the Atlantic coast in June 2013
and is ongoing to date. An increased
number of strandings have occurred
from New York to Florida, with 345
taking place in Virginia and 181 in
North Carolina. Off JEB Little Creek-Fort
Story and Camp Lejeune, 32 and 10
bottlenose dolphin strandings have
occurred, respectively, since the
declaration of the UME. The UME is
being tentatively attributed to cetacean
morbilivirus, but further research is
ongoing (National Marine Fisheries
Service 2014).
Atlantic Spotted Dolphin
This species is found in nearshore
tropical to warm-temperate waters,
predominantly over the continental
shelf and upper slope. In the western
Atlantic, this species is distributed from
New England to Brazil and is found in
the Gulf of Mexico as well as the
Caribbean Sea (Perrin 2008). Atlantic
spotted dolphin sightings have been
concentrated in the slope waters north
of Cape Hatteras, but in the shelf waters
south of Cape Hatteras sightings extend
into the deeper slope and offshore
waters of the mid-Atlantic.
Atlantic spotted dolphins are highly
gregarious, and are frequently observed
in mixed-aged groups numbering up to
several hundred individuals. Smaller
subgroups, this species can be age and
sex segregated to a small degree. Tightly
bonded mother and calf pairs are typical
to the age of 3 (Herzing n.d.).
The Atlantic spotted dolphin
regularly occurs in the nearshore waters
south of Chesapeake Bay and near the
continental shelf edge and continental
slope waters north of this region,
usually at least 4.9 to 12.4 miles (8 to
20 km) offshore (Payne et al. 1984;
Mullin and Fulling 2003; Davis et al.
1998; Perrin 2002; Perrin et al. 1994).
Therefore, while it is unlikely to occur
in the shallow waters where the JLOTS
exercises would take place, it is more
probable at Camp Lejeune than at JEB
Little Creek-Fort Story. Navy density
data suggest this species may be more
likely to occur during summer months
(U.S. Department of the Navy 2012).
Potential Effects of the Specified
Activity on Marine Mammals
When considering the influence of
various kinds of sound on the marine
environment, it is necessary to
understand that different kinds of
marine life are sensitive to different
frequencies of sound. Based on available
behavioral data, audiograms have been
derived using auditory evoked
potentials, anatomical modeling, and
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other data. From this, Southall et al.
(2007) designated ‘‘functional hearing
groups’’ for marine mammals and
estimate the lower and upper
frequencies of functional hearing of the
groups. The functional groups and the
associated frequencies are indicated
below. It should be noted, however, that
animals are less sensitive to sounds at
the outer edge of their functional range
and most sensitive to sounds of
frequencies towards the middle of their
functional hearing range:
• Low frequency cetaceans (13 species of
mysticetes): Functional hearing is estimated
to occur between approximately 7 Hz and 30
kHz;
• Mid-frequency cetaceans (32 species of
dolphins, six species of larger toothed
whales, and 19 species of beaked and
bottlenose whales): Functional hearing is
estimated to occur between approximately
150 Hz and 160 kHz;
• High frequency cetaceans (eight species
of true porpoises, six species of river
dolphins, Kogia, the franciscana, and four
species of cephalorhynchids): Functional
hearing is estimated to occur between
approximately 200 Hz and 180 kHz;
• Phocid pinnipeds in Water: Functional
hearing is estimated to occur between
approximately 75 Hz and 100 kHz; and
• Otariid pinnipeds in Water: Functional
hearing is estimated to occur between
approximately 100 Hz and 40 kHz.
As mentioned previously in this
document, only bottlenose dolphin and
Atlantic spotted dolphin are likely to
occur in the proposed JLOTS training
areas. Both of these two species are
classified as mid-frequency cetaceans
(Southall et al. 2007). Because their
hearing frequency range overlaps with
the frequencies associated with pile
driving, the Navy and NMFS
determined that in-water pile removal
and pile driving during the JLOTS
training activities have the potential to
result in behavioral harassment of the
marine mammal species and stocks in
the vicinity of the proposed activity.
Marine mammals exposed to highintensity sound repeatedly or for
prolonged periods can experience
hearing threshold shift (TS), which is
the reduction of hearing sensitivity in
the frequency ranges of the sound
source (Kastak et al. 1999; Schlundt et
al. 2000; Finneran et al. 2002; 2005). TS
can be permanent (PTS), in which case
the reduction of hearing sensitivity is
unrecoverable, or temporary (TTS), in
which case the animal’s reduction of
hearing sensitivity will recover over
time (Southall et al. 2007). Since marine
mammals depend on acoustic cues for
vital biological functions, such as
orientation, communication, finding
prey, and avoiding predators, hearing
impairment could result in the reduced
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ability of marine mammals to detect or
interpret important sounds. Repeated
noise exposure that causes TTS could
lead to PTS.
Experiments on a bottlenose dolphin
(Tursiops truncatus) and beluga whale
(Delphinapterus leucas) showed that
exposure to a single watergun impulse
at a received level of 207 kPa (or 30 psi)
peak-to-peak (p-p), which is equivalent
to 228 dB (p-p) re 1 mPa, resulted in a
7 and 6 dB TTS in the beluga whale at
0.4 and 30 kHz, respectively.
Thresholds returned to within 2 dB of
the pre-exposure level within 4 minutes
of the exposure (Finneran et al. 2002).
No TTS was observed in the bottlenose
dolphin. Although the source level of
one hammer strike for pile driving is
expected to be much lower than the
single watergun impulse cited here,
animals being exposed for a prolonged
period to repeated hammer strikes could
receive more noise exposure in terms of
sound exposure level (SEL) than from
the single watergun impulse (estimated
at 188 dB re 1 mPa2-s) in the
aforementioned experiment (Finneran et
al. 2002).
Chronic exposure to excessive, though
not high-intensity, noise could cause
masking at particular frequencies for
marine mammals that utilize sound for
vital biological functions (Clark et al.
2009). Masking is the obscuring of
sounds of interest by other sounds, often
at similar frequencies. Masking
generally occurs when sounds in the
environment are louder than, and of a
similar frequency as, auditory signals an
animal is trying to receive. Masking can
interfere with detection of acoustic
signals, such as communication calls,
echolocation sounds, and
environmental sounds important to
marine mammals. Therefore, under
certain circumstances, marine mammals
whose acoustical sensors or
environment are being severely masked
could also be impaired.
Masking occurs at the frequency band
which the animals utilize. Since noise
generated from in-water pile removal
and driving is mostly concentrated at
low frequency ranges, it may have little
effect on high-frequency echolocation
sounds by odontocetes (toothed whales).
However, the lower frequency manmade noises are more likely to affect the
detection of communication calls and
other potentially important natural
sounds, such as surf and prey noise. The
noises may also affect communication
signals when those signals occur near
the noise band, and thus reduce the
communication space of animals (e.g.,
Clark et al. 2009), cause modification in
vocalization patterns (e.g., Foote et al.
2004; Holt et al. 2009), and cause
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increased stress levels (Rolland et al.
2012).
Unlike TS, masking can potentially
impact the species at community,
population, or even ecosystem levels, as
well as individual levels. Masking
affects both senders and receivers of the
signals and could have long-term
chronic effects on marine mammal
species and populations. Recent science
suggests that low frequency ambient
sound levels in the world’s oceans have
increased by as much as 20 dB (more
than 3 times, in terms of SPL) from preindustrial periods, and most of these
increases are from distant shipping
(Hildebrand 2009). All anthropogenic
noise sources, such as those from vessel
traffic and pile removal and driving,
contribute to the elevated ambient noise
levels, thus intensifying masking.
Nevertheless, the sum of noise from
the Navy’s proposed JLOTS training
activities is confined to a limited area
and is temporary and intermittent;
therefore, the noise generated is not
expected to contribute to increased
ocean ambient noise. In addition, due to
shallow water depths in the training
area, underwater sound propagation of
low-frequency sound (which is the
major noise source from pile driving) is
expected to be poor.
Finally, in addition to TS and
masking, exposure of marine mammals
to certain sounds could lead to
behavioral disturbance (Richardson et
al. 1995), such as: Changing durations of
surfacing and dives, number of blows
per surfacing, or moving direction
and/or speed; reduced/increased vocal
activities; changing/cessation of certain
behavioral activities, such as socializing
or feeding; visible startle response or
aggressive behavior, such as tail/fluke
slapping or jaw clapping; and avoidance
of areas where noise sources are located.
The biological significance of many of
these behavioral disturbances is difficult
to predict, especially if the detected
disturbances appear minor. However,
the consequences of behavioral
modification could be expected to be
biologically significant if the change
affects growth, survival, or
reproduction. Some of these types of
significant behavioral modifications
include:
• Drastic change in diving/surfacing
patterns (such as those thought to be causing
beaked whale strandings due to exposure to
military mid-frequency tactical sonar);
• Extended habitat abandonment due to
loss of desirable acoustic environment; and
• Extended cessation of feeding or social
interaction.
The onset of behavioral disturbance
from anthropogenic noise depends on
both external factors (characteristics of
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noise sources and their paths) and the
receiving animals (hearing, motivation,
experience, demography), and is
therefore difficult to predict (Southall et
al. 2007).
The proposed training areas are not a
prime habitat for marine mammals, nor
are they considered areas frequented by
marine mammals. Therefore, behavioral
disturbances that could result from
anthropogenic noise associated with the
Navy’s JLOTS training activities are
expected to affect only a small number
of marine mammals on an infrequent
and limited basis.
Anticipated Effects on Marine Mammal
Habitat
No permanent impacts to marine
mammal habitat are anticipated to occur
as a result of the proposed training
activities. The Navy’s proposed JLOTS
training activities would not modify the
existing habitat. Therefore, no
restoration of the habitat would be
necessary. A temporary, small-scale loss
of foraging habitat may occur for marine
mammals, if the marine mammals leave
the area during pile extraction and
driving activities.
Acoustic energy created during pile
driving and removal work would have
the potential to disturb fish within the
vicinity of the training areas. As a result,
the affected areas could temporarily lose
foraging value to marine mammals.
During pile driving, high noise levels
may exclude fish from the vicinity of
the pile driving. Hastings and Popper
(2005) identified several studies that
suggest fish will relocate to avoid areas
of damaging noise energy. If fish leave
the area of disturbance, the affected area
may have a temporarily decreased
foraging value during impact
hammering and vibratory removal of
piles.
The duration of fish avoidance of this
area after pile driving stops is unknown.
However, the affected area represents an
extremely small portion of the total
foraging range of marine mammals that
may be present in and around the
project area.
Because of the short duration of the
activities and the relatively small area of
the habitat that may be affected, the
impacts to marine mammals and the
food sources that they utilize are not
expected to cause significant or longterm consequences for individual
marine mammals or marine mammal
populations.
Proposed Mitigation
In order to issue an incidental take
authorization (ITA) under section
101(a)(5)(A) of the MMPA, NMFS must
set forth the ‘‘permissible methods of
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taking pursuant to such activity, and
other means of effecting the least
practicable adverse impact on such
species or stock and its habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance.’’ The NDAA of 2004
amended the MMPA as it relates to
military-readiness activities and the
incidental take authorization process
such that ‘‘least practicable adverse
impact’’ shall include consideration of
personnel safety, practicality of
implementation, and impact on the
effectiveness of the ‘‘military readiness
activity.’’ The training activities
described in the JLOTS LOA application
are considered military readiness
activities.
NMFS reviewed the proposed
activities and the proposed mitigation
measures as described in the Navy’s
LOA application to determine if they
would result in the least practicable
adverse effect on marine mammals,
which includes a careful balancing of
the likely benefit of any particular
measure to the marine mammals with
the likely effect of that measure on
personnel safety, practicality of
implementation, and impact on the
effectiveness of the ‘‘military readiness
activity.’’ Included below are standard
operating procedures and the mitigation
measures the Navy proposed in its LOA
application.
Standard Operating Procedures
Soft starts are performed during
impact installation each day. During a
soft start, an initial set of strikes from
the impact hammer at reduced energy
are performed before it is able to be
operated at full power and speed. The
energy reduction of an individual
hammer cannot be quantified because
they vary by individual drivers. Also,
the number of strikes will vary at
reduced energy because raising the
hammer at less than full power and then
releasing it results in the hammer
‘‘bouncing’’ as it strikes the pile
resulting in multiple ‘‘strikes’’. A benefit
of a soft start is that marine species in
the vicinity are provided a ‘‘warning’’,
giving them an opportunity to leave the
area at the first occurrence of the noise,
prior to full capacity operation. This
may result in reducing exposures to
underwater noise levels that could
cause behavioral disturbance or injury.
Mitigation Zone and Shutdown Measure
The Navy will establish a mitigation
zone of 60 yards (55 m) around the pile
being driven. Visual observation will be
conducted starting 30 minutes prior to,
during, and 30 minutes after the
exercise within the mitigation zone. The
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exercise will not commence if
concentrations of floating vegetation
(Sargassum or kelp patties) are observed
in the mitigation zone.
Pile driving will cease if a marine
mammal is visually detected within the
mitigation zone. Pile driving will
re-commence if any one of the following
conditions is met: (1) The animal is
observed exiting the mitigation zone, (2)
the animal is thought to have exited the
mitigation zone based on its course and
speed, or (3) the mitigation zone has
been clear from any additional sightings
for a period of 30 minutes.
Marine Species Awareness Training
Consistent with current requirements,
all personnel standing watch on the
bridge, Commanding Officers, Executive
Officers, and Lookouts will successfully
complete the Marine Species Awareness
Training prior to standing watch or
serving as a Lookout. The Marine
Species Awareness Training is designed
to improve the effectiveness of visual
observations for marine resources,
including marine mammals. The
training provides information on
sighting cues, visual observation tools
and techniques, and sighting
notification procedures.
Vessels
Vessels will avoid approaching
marine mammals head on and will
maneuver to maintain a mitigation zone
of 500 yards (457 m) around observed
whales and 200 yards (183 m) around
all other marine mammals (except bow
riding dolphins), providing it is safe to
do so.
North Atlantic Right Whale MidAtlantic Migration Corridor
A North Atlantic right whale
migratory route is located off the midAtlantic coast of the United States. This
mitigation area applies from November
1 through April 30 and is defined as
follows:
• Block Island Sound: The area bounded
by 40°51′53.7″ N/070°36′44.9″ W; 41°20′14.1″
N/070°49′44.1″ W; 41°4′16.7″ N/071°51′21″
W; 41°35′56.5″ N/071°38′26.1″ W; then back
to first set of coordinates.
• New York and New Jersey: Within a 20
nm radius of the following (as measured
seaward from the COLREGS lines):
40°29′42.2″ N/073°55′57.6″ W.
• Delaware Bay: Within a 20 nm radius of
the following (as measured seaward from the
COLREGS lines): 38°52′27.4″ North/
075°01′32.1″ West.
• Chesapeake Bay: Within a 20 nm radius
of the following (as measured seaward from
the COLREGS lines): 37°00′36.9″ North/
075°57′50.5″ West.
• Morehead City, North Carolina: Within a
20 nm radius of the following (as measured
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seaward from the COLREGS lines):
34°41′32.0″ North/076°40′08.3″ West.
• Wilmington, North Carolina, through
South Carolina, and to Brunswick, Georgia:
Within a continuous area 20 nautical miles
from shore and west back to shore bounded
by 34°10′30″ North/077°49′12″ West;
33°56′42″ North/077°31′30″ West; 33°36′30″
North/077°47′06″ West; 33°28′24″ North/
078°32′30″ West; 32°59′06″ North/078°50′18″
West; 31°50′00″ North/080°33′12″ West;
31°27′00″ North/080°51′36″ West.
When transiting within the migration
corridor, the Navy will practice
increased vigilance, exercise extreme
caution, and proceed at the slowest
speed that is consistent with safety,
mission, and training objectives.
Mitigation Conclusions
NMFS has carefully evaluated the
Navy’s proposed mitigation measures
and considered a range of other
measures in the context of ensuring 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.
• 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.
Any mitigation measure(s) prescribed
by NMFS should be able to accomplish,
have a reasonable likelihood of
accomplishing (based on current
science), or contribute to the
accomplishment of one or more of the
general goals listed below:
1. Avoidance or minimization of injury or
death of marine mammals wherever possible
(goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine
mammals (total number or number at
biologically important time or location)
exposed to received levels of in-water pile
driving and pile removal, or other activities
expected to result in the take of marine
mammals (this goal may contribute to 1,
above, or to reducing harassment takes only).
3. A reduction in the number of times (total
number or number at biologically important
time or location) individuals would be
exposed to received levels of in-water pile
driving and pile removal, or other activities
expected to result in the take of marine
mammals (this goal may contribute to 1,
above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures
(either total number or number at biologically
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important time or location) to received levels
of in-water pile driving and pile removal, or
other activities expected to result in the take
of marine mammals (this goal may contribute
to 1, above, or to reducing the severity of
harassment takes only).
5. Avoidance or minimization of adverse
effects to marine mammal habitat, paying
special attention to the food base, activities
that block or limit passage to or from
biologically important areas, permanent
destruction of habitat, or temporary
destruction/disturbance of habitat during a
biologically important time.
6. For monitoring directly related to
mitigation—an increase in the probability of
detecting marine mammals, thus allowing for
more effective implementation of the
mitigation.
Based on our evaluation of the Navy’s
proposed measures, as well as other
measures considered by NMFS, NMFS
has preliminarily determined that the
proposed mitigation measures provide
the means of effecting the least
practicable impact on marine mammals
species or stocks and their habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance, while also considering
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
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Proposed Monitoring
In order to issue an ITA for an
activity, section 101(a)(5)(A) of the
MMPA states that NMFS must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ The MMPA implementing
regulations at 50 CFR 216.104 (a)(13)
indicate that requests for LOAs must
include the suggested means of
accomplishing the necessary monitoring
and reporting that will result in
increased knowledge of the species and
of the level of taking or impacts on
populations of marine mammals that are
expected to be present.
Monitoring measures prescribed by
NMFS should accomplish one or more
of the following general goals:
1. An increase in the probability of
detecting marine mammals, both within the
mitigation zone (thus allowing for more
effective implementation of the mitigation)
and in general to generate more data to
contribute to the analyses mentioned below;
2. An increase in our understanding of how
many marine mammals are likely to be
exposed to levels of in-water pile driving and
pile removal that we associate with specific
adverse effects, such as behavioral
harassment, TTS, or PTS;
3. An increase in our understanding of how
marine mammals respond to stimuli
expected to result in take and how
anticipated adverse effects on individuals (in
different ways and to varying degrees) may
impact the population, species, or stock
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(specifically through effects on annual rates
of recruitment or survival) through any of the
following methods:
D Behavioral observations in the presence
of stimuli compared to observations in the
absence of stimuli (need to be able to
accurately predict received level, distance
from source, and other pertinent
information);
D Physiological measurements in the
presence of stimuli compared to observations
in the absence of stimuli (need to be able to
accurately predict received level, distance
from source, and other pertinent
information);
D Distribution and/or abundance
comparisons in times or areas with
concentrated stimuli versus times or areas
without stimuli;
4. An increased knowledge of the affected
species; and
5. An increase in our understanding of the
effectiveness of certain mitigation and
monitoring measures.
Operational Monitoring Measures
(1) Standard Watch Personnel
Ships operated by or for the Navy
shall have personnel assigned to stand
watch at all times, day and night, when
moving through the water (underway).
Watch personnel shall undertake
extensive training in accordance with
the U.S. Navy Lookout Training
Handbook or civilian equivalent,
including on-the-job instruction and a
formal Personal Qualification Standard
program (or equivalent program for
supporting contractors or civilians), to
certify that they have demonstrated all
necessary skills (such as detection and
reporting of floating or partially
submerged objects). Watch personnel
are composed of officers, enlisted men
and women, and civilian equivalents.
Their duties may be performed in
conjunction with other job
responsibilities, such as navigating the
ship or supervising other personnel.
While on watch, personnel employ
visual search techniques, including the
use of binoculars, using a scanning
method in accordance with the U.S.
Navy Lookout Training Handbook or
civilian equivalent. After sunset and
prior to sunrise, watch personnel
employ night visual search techniques,
which could include the use of night
vision devices.
A primary duty of watch personnel is
to detect and report all objects and
disturbances sighted in the water that
may be indicative of a threat to the ship
and its crew, such as debris, a
periscope, surfaced submarine, or
surface disturbance. Per safety
requirements, watch personnel also
report any marine mammals sighted that
have the potential to be in the direct
path of the ship as a standard collision
avoidance procedure. Because watch
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personnel are primarily posted for safety
of navigation, range clearance, and manoverboard precautions, they are not
normally posted while ships are moored
to a pier. When anchored or moored to
a buoy, a watch team is still maintained
but with fewer personnel than when
underway. When moored or at anchor,
watch personnel may maintain security
and safety of the ship by scanning the
water for any indications of a threat (as
described above).
While underway, Navy ships (with
the exception of submarines) greater
than 65 ft. (20 m) in length have at least
two watch personnel; Navy ships less
than 65 ft. (20 m) in length, surfaced
submarines, and contractor ships have
at least one watch person. While
underway, watch personnel are alert at
all times and have access to binoculars.
Due to limited manning and space
limitations, small boats and some craft
transferring cargo from ship to shore do
not have dedicated watch personnel,
and the boat crew is responsible for
maintaining the safety of the boat and
surrounding environment.
All vessels use extreme caution and
proceed at a ‘‘safe speed’’ so they can
take proper and effective action to avoid
a collision with any sighted object or
disturbance and can be stopped within
a distance appropriate to the prevailing
circumstances and conditions.
(2) Lookouts
Lookouts perform similar duties to
standard watch personnel, and are also
responsible for satisfying mitigation
requirements. The Navy will have one
Lookout positioned on the platform
(which could include a small boat, the
elevated causeway, or the shore) that
will maximize the potential for sightings
during pile driving and pile removal.
The Lookout positioned on the
elevated causeway or the shore will be
dedicated solely to diligent observation
of the air and surface of the water. They
will have multiple observation
objectives, which include but are not
limited to detecting the presence of
biological resources and recreational or
fishing boats, observing the mitigation
zone, and monitoring for equipment and
personnel safety concerns. Due to small
boat manning and space restrictions, a
Lookout positioned on a small boat may
include a member of the boat crew, and
may be responsible for tasks in addition
to observing the air or surface of the
water (e.g., navigation of a rigid hull
inflatable boat). However, a boat
Lookout will, to the maximum extent
practicable and consistent with safety
and training requirements, comply with
the observation objectives described
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rljohnson on DSK3VPTVN1PROD with PROPOSALS
above for a Lookout positioned on the
elevated causeway or the shore.
Lookouts will also perform visual
observation starting 30 minutes prior to,
during, and 30 minutes after the
exercise within a mitigation zone of 60
yards (55 m) around the pile being
driven.
Integrated Comprehensive Monitoring
Program
The Navy will use the existing
Integrated Comprehensive Monitoring
Program (ICMP) and its new ‘‘studybased’’ approach to satisfy monitoring
requirements for the JLOTS MMPA
authorization. To ensure efficient
implementation of the program and
maintain consistency with how the
program is currently being implemented
for the Atlantic Fleet Training and
Testing (AFTT) MMPA authorization,
Navy recommends the same AFTT
adaptive management process and
reporting deadlines be used for the
JLOTS authorization.
The ICMP is intended to coordinate
monitoring efforts across all regions
where the Navy trains and tests and to
allocate the most appropriate level and
type of effort for each range complex
(U.S. Department of the Navy 2010).
Originally, the Navy monitoring
program was composed of a collection
of ‘‘range-specific’’ monitoring plans,
each developed individually as part of
Marine Mammal Protection Act and
Endangered Species Act compliance
processes as environmental
documentation was completed. These
individual plans established specific
monitoring requirements for each range
complex and were collectively intended
to address the ICMP top-level goals.
A 2010 Navy-sponsored monitoring
meeting in Arlington, Virginia, initiated
a process to critically evaluate the Navy
monitoring plans and begin
development of revisions and updates to
both the region-specific plans as well as
the ICMP. Discussions at that meeting as
well as the following Navy and NMFS
annual adaptive management meeting
established a way ahead for continued
refinement of the Navy’s monitoring
program. This process included
establishing a Scientific Advisory Group
of leading marine mammal scientists
with the initial task of developing
recommendations that would serve as
the basis for a Strategic Planning
Process for Navy monitoring. The
Strategic Plan is intended to be a
primary component of the Integrated
Comprehensive Monitoring Program
and provide a ‘‘vision’’ for Navy
monitoring across geographic regions—
serving as guidance for determining
how to most efficiently and effectively
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invest the marine species monitoring
resources to address ICMP top-level
goals and satisfy MMPA regulatory
requirements.
The objective of the Strategic
Planning Process is to continue the
evolution of Navy marine species
monitoring towards a single integrated
program, incorporating Scientific
Advisory Group recommendations, and
establishing a more transparent
framework for soliciting, evaluation,
and implementing monitoring work
across the range complexes and testing
ranges. The Strategic Planning Process
must consider a range of factors in
addition to the scientific
recommendations including logistic,
operational, and funding considerations
and will be revised regularly as part of
the annual adaptive management
process.
Past and Current Monitoring in the
Navy JLOTS Training Areas
NMFS has not issued regulations nor
incidental take authorizations to the
Navy concerning its JLOTS training on
the Atlantic coast. Therefore, no past
and current monitoring is available.
Proposed Reporting
In order to issue an ITA for an
activity, section 101(a)(5)(A) of the
MMPA states that NMFS must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ Effective reporting is critical
both to compliance as well as ensuring
that the most value is obtained from the
required monitoring. Some of the
reporting requirements are still in
development and the final rule may
contain additional details not contained
in the proposed rule. Additionally,
proposed reporting requirements may be
modified, eliminated, or added based on
information or comments received
during the public comment period.
Reports from individual monitoring
events, results of analyses, publications,
and periodic progress reports for
specific monitoring projects will be
posted to the U.S. Navy Marine Species
Monitoring web portal as they become
available. Currently, there are several
specific reporting requirements
pursuant to these proposed regulations:
General Notification of Injured or Dead
Marine Mammals
Navy personnel would ensure that
NMFS (regional stranding coordinator)
is notified immediately (or as soon as
clearance procedures allow) if an
injured or dead marine mammal is
found during or shortly after, and in the
vicinity of, any Navy training exercise.
The Navy would provide NMFS with
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species identification or description of
the animal(s), the condition of the
animal(s) (including carcass condition if
the animal is dead), location, time of
first discovery, observed behaviors (if
alive), and photographs or video (if
available).
Annual Monitoring and Exercise Report
As noted above, reports from
individual monitoring events, results of
analyses, publications, and periodic
progress reports for specific monitoring
projects would be posted to the Navy’s
Marine Species Monitoring web portal
as they become available. Progress and
results from all monitoring activity
conducted within the JLOTS training
area would be summarized in an annual
report. This report shall detail the
monitoring protocol, summarize the
data recorded during monitoring, and
estimate the number of marine
mammals that may have been harassed.
Draft reports should be combined
with the Navy’s Atlantic Fleet Training
and Testing exercise and monitoring
reports and submitted to NMFS for
review by February 13 (for exercises)
and April 1 (for monitoring) each year.
NMFS would review the report and
provide comments for incorporation
within 3 months.
Estimated Take of Marine Mammals
In the potential effects section, NMFS’
analysis identified a variety of impacts
that could potentially result from
exposure to noise during the Navy’s
JLOTS training activities. In this section,
we will relate the potential effects to
marine mammals from these sound
sources to the MMPA regulatory
definitions of Level A and Level B
Harassment and attempt to quantify the
effects that might occur from the
specific training activities that the Navy
proposes in the JLOTS training areas.
Definition of Harassment
As mentioned previously, with
respect to military readiness activities,
section 3(18)(B) of the MMPA defines
‘‘harassment’’ as: (i) Any act that injures
or has the significant potential to injure
a marine mammal or marine mammal
stock in the wild [Level A Harassment];
or (ii) any act that disturbs or is likely
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of natural behavioral
patterns, including, but not limited to,
migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where
such behavioral patterns are abandoned
or significantly altered [Level B
Harassment].
As discussed above, in-water pile
removal and pile driving (vibratory and
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impact) generate loud noises that could
potentially harass marine mammals in
the vicinity of the Navy’s proposed
JLOTS training activities.
Currently, NMFS uses 120 dB re 1 mPa
and 160 dB re 1 mPa at the received
levels for the onset of Level B
harassment from non-impulse (vibratory
pile driving and removal) and impulse
sources (impact pile driving)
underwater, respectively. Table 2
summarizes the current NMFS marine
mammal take criteria.
TABLE 2—CURRENT ACOUSTIC EXPOSURE CRITERIA FOR NON-EXPLOSIVE SOUND UNDERWATER
Criterion
Criterion definition
Threshold
Level A Harassment (Injury) ..............................
Permanent Threshold Shift (PTS) (Any level
above that which is known to cause TTS).
Behavioral Disruption (for impulse noises) ......
Behavioral Disruption (for non-impulse noise)
180 dB re 1 μPa (cetaceans) 190 dB re 1 μPa
(pinnipeds) root mean square (rms).
160 dB re 1 μPa (rms).
120 dB re 1 μPa (rms).
present by the total impacted area for
each threshold value, rounding the
result to the closest integer, and then
multiplying that result by the potential
number of days of pile driving.
• Installation and removal method:
vibratory and/or impact hammer
• Physical environment: water depth,
sediment type
Level B Harassment ..........................................
Level B Harassment ..........................................
Methods for Estimating Takes
The methods for estimating the
number and types of exposure are
described in the sections below,
followed by the method for quantifying
exposures of marine mammals to
sources of energy exceeding those
threshold values. Exposure of each was
determined by:
• The potential of each species to be
impacted by the acoustic sources as
determined by acoustic criteria for marine
mammals.
• The potential presence of each species
and their estimated density inside the range
to effect.
• The range to effect for impact installation
and vibratory extraction (estimated by taking
into account the source levels, propagation
loss, and thresholds at which each acoustic
criterion is met).
Potential exposures were calculated
by multiplying the density of each
marine mammal species potentially
Underwater Sound From Pile Driving
Sound levels produced by pile driving
are greatly influenced by factors
including pile type, driving method,
and the physical environment in which
the activity takes place. A number of
studies have examined sound pressure
levels recorded from underwater pile
driving projects in California and
Washington, creating a large body of
data for impact driving of steel pipe
piles.
To determine the most appropriate
sound pressure levels for this project,
data from studies which met the
following parameters were considered:
• Pile size and type: 24-inch diameter steel
pipe piles
Details of the physical characteristics
of the waters and substrate off the
proposed JLOTS locations were taken
into consideration for determining the
size of ensonified zones. Source levels
were selected from NAVFAC Atlantic’s
comprehensive dataset based on
similarity to site conditions at JEB Little
Creek-Fort Story (sand with shell debris
sediments, average depth 1–5 meters),
and Camp Lejeune (lower sedimentation
with hard-bottom in some areas, depth
around 7 meters), equipment (i.e., diesel
hammer), and lack of conditions that
might introduce extra noise into the
measurements (e.g., riverine
environments). Calculated averages of
selected source levels used as proxies
for modeling are summarized in Table 3.
TABLE 3—SUMMARY OF SOURCE LEVELS
dB re 1 μPa rms
Method
Location
Impact Installation ....................................................................
JEB Little Creek-Fort Story .....................................................
Camp Lejeune .........................................................................
JEB Little Creek-Fort Story .....................................................
Camp Lejeune.
Vibratory Removal ...................................................................
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Take Zone Size Calculation
Modeling sound propagation is useful
in evaluating noise levels to determine
distance from the pile driving activity
that certain sound levels may travel.
The decrease in acoustic intensity as a
sound wave propagates outward from a
source is known as transmission loss
(TL). The formula for transmission loss
is:
TL = B * log10(R1/R2) + C * R1,
Where
B = logarithmic (predominantly spreading)
loss
C = linear (scattering and absorption) loss
R1 = range from source in meters
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R2 = range from driven pile to original
measurement location (generally 10 m
for pile driving activities)
The amount of linear loss (C) is
proportional to the frequency of a
sound. Due to the low frequencies of
sound generated by impact and
vibratory pile driving, this factor was
assumed to be zero for all calculations
in this assessment and transmission loss
was calculated using only logarithmic
spreading. Therefore, using practical
spreading (B = 15), the revised formula
for transmission loss is TL = 15 log10
(R1/10).
The practical spreading loss model
(TL =15 log10 (R1/10)) discussed above
was used to calculate the underwater
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188
189
160
propagation of pile driving sound in and
around the three proposed locations. A
total of 30 days of pile driving were
modeled for JEB Little Creek-Fort Story
and Camp Lejeune; 20 days of impact
driving, and 10 days of vibratory
extraction. No noise mitigation methods
(bubble curtains, cofferdams, etc.) are
proposed and therefore no attenuation
was included in the acoustic model.
Impact driving of each pile is
expected to last no more than 15
minutes. Typically, 6 piles would be
installed each day, for up to 20 days.
Generally, two pile drivers are used, but
not simultaneously: While one is
installing a pile, the other is being
repositioned for the next pile. For
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vibratory extraction, the acoustic model
assumed that 12 piles would be
extracted each day, lasting 6 minutes
each, over the course of 10 days.
The range to effects (Table 4) for
underwater noise is assumed to take a
circular shape around the notional pile
bring driven at the furthest offshore
point of the ELCAS (M) (approximately
1,500 ft. [457 m] from shore). Zones
with radii larger than 1,500 ft. (457 m)
will be truncated by the shoreline, and
were modeled as semicircles extending
to the west, north, and east in the case
of JEB Little Creek-Fort Story; and north,
east, and south at Camp Lejeune since
the beaches at each of the locations
would represent the boundary for
underwater propagation. The calculated
ranges assume no obstructions, and
sounds will attenuate as they encounter
land or other solid obstacles. As a result,
the distances calculated may not
actually be attained at the two
installations.
TABLE 4—CALCULATED RANGE TO EFFECTS AND ZONES OF INFLUENCE FOR MARINE MAMMALS DURING PILE DRIVING
Range
Driving method
Impact Pile Drive ...........
Vibratory Pile Removal
Threshold
Area
JEB Little CreekFort Story
Injury: 180 dB re 1 μPa
rms.
Behavioral: 160 dB re 1
μPa rms.
Camp Lejeune
37 yds (34 m) ..............
44 yds (40 m) ..............
805 yds (736 m) ..........
938 yds (858 m) ..........
Injury: 180 dB re 1 μPa
rms.
Behavioral: 120 dB re 1
μPa rms.
JEB Little CreekFort Story
Camp Lejeune
0.001 mi2
(0.0037 km2)
0.328 mi2
(0.85 km2)
0.002 mi2
(0.005 km2)
0.446 mi2
(1.156 km2)
n/a
n/a
5,077 yds (4,642 m)
13.07 mi2 (33.84 km2)
Note: All sound levels expressed in dB re 1 μPA rms; dB = decibel; rms = root mean square; m = meter; mi2 = square mile; km2 = square kilometer; behavioral zones of influence are semi-circles based on notional distance from shore of the pile being driven; injury zones of influence
are circular since they will not extend to and therefore be attenuated by land.
Take Number Requested
Based on the size of the areas in
which pile driving and extraction may
exceed established thresholds, the Navy
applied estimated densities for the
bottlenose dolphin and Atlantic spotted
dolphin and the number of active pile
driving days. The result shows that
approximately 110 bottlenose dolphins
and 50 Atlantic spotted dolphins could
be taken by Level B behavioral
harassment annually, with a total of 550
bottlenose dolphins and 250 Atlantic
spotted dolphins taken by Level B
behavioral harassment during the fiveyear period of the rule (Table 5). The
annual percentage of takes of these
species/stock is less than 6% of the
population.
TABLE 5—SPECIES-SPECIFIC LEVEL A AND LEVEL B INCIDENTAL TAKES FOR JLOTS TRAINING ACTIVITIES
Species
Stock
Bottlenose dolphin ..........................................
Northern North Carolina Estuarine System ...
Southern North Carolina Estuarine System ...
Western North Atlantic ...................................
Atlantic spotted dolphin ...................................
Analysis and Preliminary
Determinations
rljohnson on DSK3VPTVN1PROD with PROPOSALS
Negligible Impact
Negligible impact is ‘‘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’’
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of Level B harassment takes, alone, is
not enough information on which to
base an impact determination. In
addition to considering estimates of the
number of marine mammals that might
be ‘‘taken’’ through behavioral
harassment, NMFS must consider other
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factors, such as the likely nature of any
responses (their intensity, duration,
etc.), the context of any responses
(critical reproductive time or location,
migration, etc.), as well as the number
and nature of estimated Level A
harassment takes, the number of
estimated mortalities, and effects on
habitat.
The Navy’s proposed JLOTS training
activity would involve pile driving and
removal activities during the training
exercise. Elevated noise levels are
expected to be generated as a result of
these activities. However, the source
levels generated by the pile driving and
removal activities are expected be low
due to the low-power hammer being
used. In addition, given the standard
operating procedure of soft starts and
required mitigation and monitoring
such as shutdown measures when
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Percent of
population
Annual
Sfmt 4702
50
60
50
5.26
2.44
0.18
Total
(5 years)
250
300
250
marine mammals are sighted
approaching the mitigation zone, no
injuries or mortalities are anticipated to
occur as a result of the Navy’s proposed
JLOTS training activities, and none are
proposed to be authorized. In addition,
as described above, marine mammals in
the area would not be exposed to
activities or sound levels which would
result in hearing impairment (TTS or
PTS) or non-auditory physiological
effects.
In-water construction activities would
occur in nearshore shallow waters at the
JEB Little Creek-Fort Story in Virginia
and at Camp Lejeune in North Carolina.
The proposed training areas are not
considered significant habitat for marine
mammals. Marine mammals
approaching the action area would
likely be traveling or opportunistically
foraging. There are no rookeries or major
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haul-out sites nearby, foraging hotspots,
or other ocean bottom structure of
significant biological importance to
marine mammals that may be present in
the marine waters in the vicinity of the
training areas. The proposed training
areas are not prime habitats for marine
mammals, nor are they considered areas
frequented by marine mammals.
Therefore, behavioral disturbances that
could result from anthropogenic noise
associated with the JLOTS training
activities are expected to affect only a
small number of marine mammals on an
infrequent basis. Although it is possible
that some individual marine mammals
may be exposed to sounds from in-water
pile driving activities more than once,
the duration of these multi-exposures is
expected to be low since animals would
be constantly moving in and out of the
area and in-water pile driving activities
would not occur continuously
throughout the day.
Marine mammals may be temporarily
impacted by noise from pile driving and
pile removal activities. These low
intensity, localized, and short-term
noise exposures may cause brief startle
reactions or short-term behavioral
modifications by the animals. These
reactions and behavioral changes are
expected to subside quickly when the
exposures cease. Moreover, marine
mammals are expected to avoid the area
during in-water construction because
animals generally move away from
active sound sources, thereby reducing
exposure and impacts. In addition,
through soft starts, a standard operating
procedure, marine mammals are
expected to move away from a sound
source that is annoying prior to its
becoming potentially injurious, and
detection of marine mammals by
lookouts would enable the
implementation of shutdowns to avoid
injury, serious injury, or mortality. Inwater pile driving and pile removal are
expected to occur for about 20 days and
10 days total annually at each location,
respectively. Repeated exposures of
individuals to levels of sound that may
cause Level B harassment are unlikely
to result in hearing impairment or to
significantly disrupt foraging behavior.
Thus, even repeated Level B harassment
of some small subset of an overall stock
is unlikely to result in any significant
realized decrease in fitness to those
individuals, and thus would not result
in any adverse impact to the stock as a
whole. Level B harassment will be
reduced to the level of least practicable
impact through use of mitigation
measures described herein and, if sound
produced by project activities is
sufficiently disturbing, animals are
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likely to simply avoid the project area
while the activity is occurring.
Based on the application and
subsequent analysis, the impact of the
described in-water pile driving activities
may result in, at most, short-term
modification of behavior by small
numbers of marine mammals within the
action area. No injury, serious injury, or
mortality is expected to occur and due
to the nature, degree, and context of the
Level B harassment anticipated, the
activity is not expected to impact rates
of recruitment or survival.
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
proposed monitoring and mitigation
measures, NMFS finds preliminarily
that the total marine mammal take from
the Navy’s JLOTS training activity will
have a negligible impact on the affected
marine mammal species or stocks.
Endangered Species Act (ESA)
No species listed under the ESA are
expected to be affected by these
activities. Therefore, NMFS has
determined that a section 7 consultation
under the ESA is not required.
NEPA
NMFS has participated as a
cooperating agency on the JLOTS draft
EA, which is scheduled to be published
on January 6, 2015. The JLOTS draft EA
will be posted on NMFS’ Web site:
https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications. NMFS
intends to adopt the Navy’s EA, if
adequate and appropriate. Currently, we
believe that the adoption of the Navy’s
EA will allow NMFS to meet its
responsibilities under NEPA for the
issuance of regulations and a five-year
LOA for JLOTS training activities. If the
Navy’s JLOTS EA is deemed inadequate,
NMFS would supplement the existing
analysis to ensure that we comply with
NEPA prior to the issuance of the final
rule or LOA.
Classification
The Office of Management and Budget
has determined that this proposed rule
is not significant for purposes of
Executive Order 12866.
Pursuant to the Regulatory Flexibility
Act (RFA), the Chief Counsel for
Regulation of the Department of
Commerce has certified to the Chief
Counsel for Advocacy of the Small
Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
The RFA requires federal agencies to
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2645
prepare an analysis of a rule’s impact on
small entities whenever the agency is
required to publish a notice of proposed
rulemaking. However, a federal agency
may certify, pursuant to 5 U.S.C. 605(b),
that the action will not have a
significant economic impact on a
substantial number of small entities.
The Navy, a federal agency, is the sole
entity that will be affected by this
rulemaking. It is not a small
governmental jurisdiction, small
organization, or small business, as
defined by the RFA. Any requirements
imposed by an LOA issued pursuant to
these regulations, and any monitoring or
reporting requirements imposed by
these regulations, would be applicable
only to the Navy. NMFS does not expect
the issuance of these regulations or the
associated five-year LOA to result in any
impacts to small entities pursuant to the
RFA. Because this action, if adopted,
would only directly affect the Navy,
NMFS concludes the action would not
result in a significant economic impact
on a substantial number of small
entities.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental
take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting
and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: December 23, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries.
For reasons set forth in the preamble,
50 CFR part 218 is proposed to be
amended as follows:
PART 218—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 218
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq.
2. Subpart B is added to part 218 to
read as follows:
■
Subpart B—Takes of Marine Mammals
Incidental to Specified Activities; U.S. Navy
Joint Logistics Over-the-Shore (JLOTS)
Training Activities in Virginia and North
Carolina
Sec.
218.10 Specified activity and specified
geographical region.
218.11 Effective dates and definitions.
218.12 Permissible methods of taking.
218.13 Prohibitions.
218.14 Standard operating procedure and
mitigation measures.
218.15 Requirements for monitoring and
reporting.
218.16 Applications for Letters of
Authorization.
218.17 Letters of Authorization.
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218.18 Renewal of Letters of Authorization
and Adaptive Management.
218.19 Modifications to Letters of
Authorization.
(3) Atlantic spotted dolphin (Stenella
frontalis)/Western North Atlantic: 250
(50 per year).
§ 218.13
Subpart B—Takes of Marine Mammals
Incidental to Specified Activities; U.S.
Navy Joint Logistics Over-the-Shore
(JLOTS) Training Activities in Virginia
and North Carolina
§ 218.10 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
only to the U.S. Navy for the taking of
marine mammals that occurs in the area
outlined in paragraph (b) of this section
and that occurs incidental to the
activities described in paragraph (c) of
this section.
(b) The taking of marine mammals by
the Navy is only authorized if it occurs
within the JLOTS training areas, which
is in nearshore shallow waters at the
Joint Expeditionary Base (JEB) Little
Creek-Fort Story in Virginia and at
Camp Lejeune in North Carolina.
(c) The taking of marine mammals by
the Navy is only authorized if it occurs
incidental to the JLOTS training
activities in the activity areas any time
of year, but no more than once annually
at JEB Little Creek-Fort Story, and once
annually at Camp Lejeune.
§ 218.11
Effective dates and definitions.
(a) Regulations are effective [DATE OF
FILING for public inspection of the final
rule with the Office of the Federal
Register], through [DATE FIVE YEARS
AFTER DATE OF FILING for public
inspection of the final rule with the
Office of the Federal Register].
rljohnson on DSK3VPTVN1PROD with PROPOSALS
§ 218.12
Permissible methods of taking.
(a) Under Letters of Authorization
(LOAs) issued pursuant to § 218.17, the
Holder of the Letter of Authorization
may incidentally, but not intentionally,
take marine mammals within the area
described in § 218.10, provided the
activity is in compliance with all terms,
conditions, and requirements of these
regulations and the appropriate LOA.
(b) The activities identified in
§ 218.10(c) must be conducted in a
manner that minimizes, to the greatest
extent practicable, any adverse impacts
on marine mammals and their habitat.
(c) The incidental take of marine
mammals under the activities identified
in § 218.10(c) is limited to JLOTS
training activities, by Level B behavioral
harassment:
(1) Bottlenose dolphin (Tursiops
truncatus)/Northern North Carolina
Estuarine System: 250 (50 per year);
(2) Bottlenose dolphin (Tursiops
truncatus)/Southern North Carolina
Estuarine System: 300 (60 per year); and
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Prohibitions.
Notwithstanding takings
contemplated in § 218.12 and
authorized by an LOA issued under
§§ 216.106 of this chapter and § 218.17,
no person in connection with the
activities described in § 218.10 may:
(a) Take any marine mammal not
specified in § 218.12(c);
(b) Take any marine mammal
specified in § 218.12(c) other than by
incidental take as specified in
§ 218.12(c);
(c) Take a marine mammal specified
in § 218.12(c) if such taking results in
more than a negligible impact on the
species or stocks of such marine
mammal; or
(d) Violate, or fail to comply with, the
terms, conditions, and requirements of
these regulations or an LOA issued
under §§ 216.106 of this chapter and
218.17.
§ 218.14 Standard operating procedure
and mitigation measures.
(a) When conducting training and
testing activities, as identified in
§ 218.10, the mitigation measures
contained in the LOA issued under
§§ 216.106 of this chapter and 218.17
must be implemented. These mitigation
measures include, but are not limited to:
(1) Establishing mitigation zone. (i) A
mitigation zone of 60 yards (55 m)
around the pile being driven shall be
established.
(ii) Visual observation will be
conducted starting 30 minutes prior to,
during, and 30 minutes after the ELCAS
(M) exercise within the mitigation zone.
The exercise will not commence if
concentrations of floating vegetation
(Sargassum or kelp patties) are observed
in the mitigation zone.
(2) Soft starts. (i) Soft starts, or
gradually ramping up the power of pile
driving hammer, shall be performed
during impact installation each day.
(ii) During a soft start, an initial set of
strikes from the impact hammer at
reduced energy are performed before it
is able to be operated at full power and
speed.
(3) Shutdown measures. (i) Pile
driving shall cease if a marine mammal
is visually detected within or
approaching the mitigation zone.
(ii) Pile driving may re-commence if
any one of the following conditions is
met:
(A) The animal is observed exiting the
mitigation zone,
(B) The animal is thought to have
exited the mitigation zone based on its
course and speed, or
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(C) The mitigation zone has been clear
from any additional sightings for a
period of 30 minutes.
(b) Marine species awareness training.
(1) All personnel standing watch on the
bridge, Commanding Officers, Executive
Officers, and Lookouts shall
successfully complete the Marine
Species Awareness Training prior to
standing watch or serving as a Lookout.
(2) The Marine Species Awareness
Training shall be designed to improve
the effectiveness of visual observations
for marine resources, including marine
mammals.
(3) The training shall provide
information on sighting cues, visual
observation tools and techniques, and
sighting notification procedures.
(c) Vessels. Vessels shall avoid
approaching marine mammals head on
and shall maneuver to maintain a
mitigation zone of 500 yards (457 m)
around observed whales and 200 yards
(183 m) around all other marine
mammals (except bow riding dolphins),
providing it is safe to do so.
(d) North Atlantic Right Whale MidAtlantic Migration Corridor. When
transiting within the following North
Atlantic right whale Mid-Atlantic
migration corridor defined below
between November 1 and April 30, the
Navy shall practice increased vigilance,
exercise extreme caution, and proceed
at the slowest speed that is consistent
with safety, mission, and training
objectives:
(1) Block Island Sound: The area
bounded by 40°51′53.7″ N/070°36′44.9″
W; 41°20′14.1″ N/070°49′44.1″ W;
41°4′16.7″ N/071°51′21″ W; 41°35′56.5″
N/071°38′26.1″ W; then back to first set
of coordinates.
(2) New York and New Jersey: Within
a 20 nm radius of the following (as
measured seaward from the COLREGS
lines): 40°29′42.2″ N/073°55′57.6″ W.
(3) Delaware Bay: Within a 20 nm
radius of the following (as measured
seaward from the COLREGS lines):
38°52′27.4″ North/075°01′32.1″ West.
(4) Chesapeake Bay: Within a 20 nm
radius of the following (as measured
seaward from the COLREGS lines):
37°00′36.9″ North/075°57′50.5″ West.
(5) Morehead City, North Carolina:
Within a 20 nm radius of the following
(as measured seaward from the
COLREGS lines): 34°41′32.0″ North/
076°40′08.3″ West.
(6) Wilmington, North Carolina,
through South Carolina, and to
Brunswick, Georgia: Within a
continuous area 20 nautical miles from
shore and west back to shore bounded
by 34°10′30″ North/077°49′12″ West;
33°56′42″ North/077°31′30″ West;
33°36′30″ North/077°47′06″ West;
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33°28′24″ North/078°32′30″ West;
32°59′06″ North/078°50′18″ West;
31°50′00″ North/080°33′12″ West;
31°27′00″ North/080°51′36″ West.
rljohnson on DSK3VPTVN1PROD with PROPOSALS
§ 218.15 Requirements for monitoring and
reporting.
(a) Monitoring measures—(1)
Standard watch personnel. (i) Ships
operated by or for the Navy shall have
personnel assigned to stand watch at all
times, day and night, when moving
through the water (underway).
(ii) Watch personnel shall undertake
extensive training in accordance with
the U.S. Navy Lookout Training
Handbook or civilian equivalent,
including on-the-job instruction and a
formal Personal Qualification Standard
program (or equivalent program for
supporting contractors or civilians), to
certify that they have demonstrated all
necessary skills (such as detection and
reporting of floating or partially
submerged objects).
(iii) While on watch, watch personnel
shall employ visual search techniques,
including the use of binoculars, using a
scanning method in accordance with the
U.S. Navy Lookout Training Handbook
or civilian equivalent.
(iv) After sunset and prior to sunrise,
watch personnel shall employ night
visual search techniques, which could
include the use of night vision devices.
(v) A primary duty of watch personnel
is to detect and report all objects and
disturbances sighted in the water that
may be indicative of a threat to the ship
and its crew, such as debris, a
periscope, surfaced submarine, or
surface disturbance.
(vi) Per safety requirements, watch
personnel also report any marine
mammals sighted that have the potential
to be in the direct path of the ship as
a standard collision avoidance
procedure. Because watch personnel are
primarily posted for safety of
navigation, range clearance, and manoverboard precautions, they are not
normally posted while ships are moored
to a pier.
(vii) When anchored or moored to a
buoy, a watch team is still maintained
but with fewer personnel than when
underway.
(viii) When moored or at anchor,
watch personnel may maintain security
and safety of the ship by scanning the
water for any indications of a threat.
(ix) While underway, Navy ships
(with the exception of submarines)
greater than 65 ft. (20 m) in length have
at least two watch personnel; Navy
ships less than 65 ft. (20 m) in length,
surfaced submarines, and contractor
ships have at least one watch person.
While underway, watch personnel are
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alert at all times and have access to
binoculars. Due to limited manning and
space limitations, small boats and some
craft transferring cargo from ship to
shore do not have dedicated watch
personnel, and the boat crew is
responsible for maintaining the safety of
the boat and surrounding environment.
(x) All vessels use extreme caution
and proceed at a ‘‘safe speed’’ so they
can take proper and effective action to
avoid a collision with any sighted object
or disturbance and can be stopped
within a distance appropriate to the
prevailing circumstances and
conditions.
(2) Lookouts. (i) Lookouts shall
perform similar duties to standard
watch personnel, and are also
responsible for satisfying mitigation
requirements.
(ii) The Navy will have one Lookout
positioned on the platform (which could
include a small boat, the elevated
causeway, or the shore) that will
maximize the potential for sightings
during pile driving and pile removal.
(iii) The Lookout positioned on the
elevated causeway or the shore shall be
dedicated solely to diligent observation
of the air and surface of the water. They
shall have multiple observation
objectives, which include but are not
limited to detecting the presence of
biological resources and recreational or
fishing boats, observing the mitigation
zone, and monitoring for equipment and
personnel safety concerns.
(iv) A Lookout positioned on a small
boat may include a member of the boat
crew, and may be responsible for tasks
in addition to observing the air or
surface of the water (e.g., navigation of
a rigid hull inflatable boat). However, a
boat Lookout shall, to the maximum
extent practicable and consistent with
safety and training requirements,
comply with the observation objectives
described above for a Lookout
positioned on the elevated causeway or
the shore.
(v) Lookouts shall also perform visual
observation starting 30 minutes prior to,
during, and 30 minutes after the
exercise within a mitigation zone of 60
yards (55 m) around the pile being
driven.
(3) Integrated comprehensive
monitoring program. (i) The Navy shall
use the existing Integrated
Comprehensive Monitoring Program
(ICMP) and its new ‘‘study-based’’
approach to satisfy monitoring
requirements for the JLOTS MMPA
authorization.
(b) Reporting measures—(1) General
notification of injured or dead marine
mammals. (i) Navy personnel would
ensure that NMFS (regional stranding
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2647
coordinator) is notified immediately (or
as soon as clearance procedures allow)
if an injured or dead marine mammal is
found during or shortly after, and in the
vicinity of, any Navy training exercise.
(ii) The Navy shall provide NMFS
with species identification or
description of the animal(s), the
condition of the animal(s) (including
carcass condition if the animal is dead),
location, time of first discovery,
observed behaviors (if alive), and
photographs or video (if available).
(2) Annual monitoring and exercise
report. (i) Reports from individual
monitoring events, results of analyses,
publications, and periodic progress
reports for specific monitoring projects
would be posted to the Navy’s Marine
Species Monitoring web portal as they
become available.
(ii) Progress and results from all
monitoring activity conducted within
the JLOTS training area shall be
summarized in an annual report. This
report shall detail the monitoring
protocol, summarize the data recorded
during monitoring, and estimate the
number of marine mammals that may
have been harassed.
(iii) Draft reports should be combined
with the Navy’s Atlantic Fleet Training
and Testing exercise and monitoring
reports and submitted to NMFS for
review by February 13 (for exercises)
and April 1 (for monitoring) each year.
NMFS would review the report and
provide comments for incorporation
within 3 months.
§ 218.16 Applications for Letters of
Authorization.
To incidentally take marine mammals
pursuant to the regulations in this
subpart, the U.S. citizen (as defined by
§ 216.106 of this chapter) conducting
the activity identified in § 218.10(c) (the
U.S. Navy) must apply for and obtain
either an initial LOA in accordance with
§ 218.17 or a renewal under § 218.18.
§ 218.17
Letters of Authorization.
(a) An LOA, unless suspended or
revoked, will be valid for a period of
time not to exceed the period of validity
of this subpart.
(b) Each LOA will set forth:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact on the
species, its habitat, and on the
availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation,
monitoring and reporting.
(c) Issuance and renewal of the LOA
will be based on a determination that
the total number of marine mammals
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taken by the activity as a whole will
have no more than a negligible impact
on the affected species or stock of
marine mammal(s).
rljohnson on DSK3VPTVN1PROD with PROPOSALS
§ 218.18 Renewal of Letters of
Authorization.
(a) A Letter of Authorization issued
under §§ 216.106 of this chapter and
218.17 for the activity identified in
§ 218.10(c) will be renewed based upon:
(1) Notification to NMFS that the
activity described in the application
submitted under § 218.18 will be
undertaken and that there will not be a
substantial modification to the
described work, mitigation, or
monitoring undertaken during the
upcoming period of validity;
(2) Timely receipt (by the dates
indicated in these regulations) of the
monitoring reports required under
§ 218.15(b); and
(3) A determination by the NMFS that
the mitigation, monitoring, and
reporting measures required under
§ 218.14 and the LOA issued under
§§ 216.106 of this chapter and 218.17,
were undertaken and will be undertaken
during the upcoming period of validity
of a renewed Letter of Authorization.
(b) If a request for a renewal of an
LOA issued under this § 216.106 of this
chapter and § 218.17 indicates that a
substantial modification, as determined
by NMFS, to the described work,
mitigation or monitoring undertaken
during the upcoming season will occur,
NMFS will provide the public a period
of 30 days for review and comment on
the request. Review and comment on
renewals of LOAs are restricted to:
(1) New cited information and data
indicating that the determinations made
in this document are in need of
reconsideration; and
(2) Proposed changes to the mitigation
and monitoring requirements contained
in these regulations or in the current
LOA.
(c) A notice of issuance or denial of
an LOA renewal will be published in
the Federal Register.
(d) NMFS, in response to new
information and in consultation with
the Navy, may modify the mitigation or
monitoring measures in subsequent
LOAs if doing so creates a reasonable
likelihood of more effectively
accomplishing the goals of mitigation
and monitoring. Below are some of the
possible sources of new data that could
contribute to the decision to modify the
mitigation or monitoring measures:
(1) Results from the Navy’s
monitoring from the previous year
(either from the JLOTS training areas or
other locations).
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(2) Compiled results of Navy-funded
research and development (R&D) studies
(presented pursuant to the ICMP
(§ 218.15(d)).
(3) Results from specific stranding
investigations (either from the JLOTS
training areas or other locations, and
involving coincident mid- or highfrequency active sonar or explosives
training or not involving coincident
use).
(4) Results from the Long Term
Prospective Study.
(5) Results from general marine
mammal and sound research (funded by
the Navy (or otherwise).
§ 218.19 Modifications to Letters of
Authorization.
(a) Except as provided in paragraph
(b) of this section, no substantive
modification (including withdrawal or
suspension) to the LOA by NMFS,
issued pursuant to §§ 216.106 of this
chapter and 218.17 and subject to the
provisions of this subpart shall be made
until after notification and an
opportunity for public comment has
been provided. For purposes of this
paragraph, a renewal of an LOA under
§ 218.18, without modification (except
for the period of validity), is not
considered a substantive modification.
(b) If the Assistant Administrator
determines that an emergency exists
that poses a significant risk to the wellbeing of the species or stocks of marine
mammals specified in § 218.12(c), an
LOA issued pursuant to §§ 216.106 of
this chapter and 218.17 may be
substantively modified without prior
notification and an opportunity for
public comment. Notification will be
published in the Federal Register
within 30 days subsequent to the action.
[FR Doc. 2015–00558 Filed 1–16–15; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 100825390–5012–02]
RIN 0648–BA17
Atlantic Highly Migratory Species;
Large Coastal and Small Coastal
Atlantic Shark Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
This proposed rule would
implement Draft Amendment 6 to the
2006 Consolidated Highly Migratory
Species (HMS) Fishery Management
Plan (FMP). Management measures in
this proposed rulemaking are designed
to respond to the problems facing
Atlantic commercial shark fisheries,
such as commercial landings that
exceed the quotas, declining numbers of
fishing permits since limited access was
implemented, complex regulations,
derby fishing conditions due to small
quotas and short seasons, increasing
numbers of regulatory discards, and
declining market prices. The primary
goal of Amendment 6 to the 2006
Consolidated HMS FMP (Amendment 6)
is to implement management measures
for the Atlantic shark fisheries that will
achieve the objectives of increasing
management flexibility to adapt to the
changing needs of the Atlantic shark
fisheries, and achieve optimum yield
while rebuilding overfished shark stocks
and ending overfishing. Specifically,
this action proposes: Adjusting the large
coastal sharks (LCS) retention limit for
shark directed Limited Access Permit
(LAP) holders; creating sub-regional
quotas in the Atlantic and Gulf of
Mexico regions for LCS and small
coastal sharks (SCS); modifying the LCS
and SCS quota linkages; establishing
total allowable catches (TACs) and
adjusting quotas for non-blacknose SCS
in the Atlantic and Gulf of Mexico
regions based on the results of the 2013
stock assessments for Atlantic
sharpnose and bonnethead sharks; and
modifying upgrading restrictions for
shark permit holders. The proposed
measures could affect commercial shark
fishermen fishing in the Atlantic Ocean
including the Gulf of Mexico and
Caribbean Sea.
DATES: Written comments must be
received on or before April 3, 2015.
NMFS will hold 4 public hearings on
Draft Amendment 6 and this
implementing proposed rule on
February 17, February 18, February 23,
and February 26, 2015. NMFS will also
hold an operator-assisted public hearing
via conference call and webinar for this
proposed rule on March 25, 2015, from
2 p.m. to 4 p.m. For specific locations,
dates and times see the SUPPLEMENTARY
INFORMATION section of this document.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2010–0188, by any one of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-2010SUMMARY:
E:\FR\FM\20JAP1.SGM
20JAP1
Agencies
[Federal Register Volume 80, Number 12 (Tuesday, January 20, 2015)]
[Proposed Rules]
[Pages 2636-2648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00558]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 140909771-4771-01]
RIN 0648-BE51
Takes of Marine Mammals Incidental to Specified Activities; U.S.
Navy Joint Logistics Over-the-Shore Training Activities in Virginia and
North Carolina
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of proposed rule; request for comments and information.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for
authorization to take marine mammals incidental to the Joint Logistics
Over-the-Shore (JLOTS) training activities conducted in Virginia and
North Carolina, from June 2015 through June 2020. Pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue regulations and a five-year Letter of Authorization
(LOA) to the Navy to incidentally harass marine mammals.
DATES: Comments and information must be received no later than February
19, 2015.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2015-0004,
by either of the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking Portal https://www.regulations.gov.
Hand delivery of mailing of paper, disk, or CD-ROM
comments should be addressed to Jolie Harrison, Chief, Permits and
Conservation Division, Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Work, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of the Navy's application may be obtained by visiting the
internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. The
Navy's Draft Environmental Assessment for Joint Logistics Over-the-
Shore Training (EA) will be made available to the public on January 6,
2015, during the comment period for this proposed rule. Documents cited
in this notice may also be viewed, by appointment, during regular
business hours, at the aforementioned address.
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, 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 either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
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.''
The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographic region''
limitations indicated above and amended the definition of
``harassment'' as applied to ``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 August 20, 2014, NMFS received an application from the Navy
requesting a letter of authorization (LOA) for the take of bottlenose
and Atlantic spotted dolphins incidental to the Navy's JLOTS training
activities in nearshore waters at the Joint Expeditionary Base (JEB)
Little Creek-Fort Story in Virginia and at Camp Lejeune in North
Carolina. The Navy is requesting regulations that would establish a
process for authorizing take, via a 5-year LOA, of marine mammals
incidental to training activities. These activities are classified as
military readiness activities. The Navy states that these activities
may result in take of marine mammals from noise from temporary pier
construction associated with the JLOTS training activities. The Navy
requests to take bottlenose and Atlantic spotted dolphins by Level B
harassment.
Description of the Specified Activity
JLOTS training is the movement of cargo and personnel from ships to
shore in areas that do not have existing fixed port facilities. Among
the several coordinated exercises of the JLOTS training, the only
activity that has the potential to harass marine mammals is the
construction of the Elevated Causeway System, Modular [ELCAS (M)] by
introducing noise into the water.
The ELCAS (M) is a temporary pier constructed from the beach into
the water past the surf zone. It provides a means of delivering
containers, vehicles, and bulk cargo ashore without lighterage craft
having to enter the surf
[[Page 2637]]
zone. The ELCAS (M) consists of a series of 24- by 40-ft. (7.3- by
12.2-m) pontoon sections joined together and supported by piles driven
into the sea floor.
To build the pier, piles are driven into the sand with a diesel-
powered impact hammer. The piles used typically are hollow, half-inch
steel uncapped piles, 24 inches (0.5 m) in diameter, and can be of
various lengths (38 ft. [11.6 m], 57 ft. [17.4 m], or 76 ft. [23.2 m])
depending on local bathymetry. The depth to which the piles are driven
is between 30 and 40 ft. (9.1 to 12.2 m) and installation takes
approximately 15 minutes per pile. Typically, 6 piles would be
installed in a day. Two pile drivers are generally used, but not
simultaneously: while one is driving a pile, the other is being re-
positioned for the next pile. Construction may take up to 20 days. A
pier length of 1,500 ft (457 m) is typical for training, with
approximately 119 supporting piles.
Once the ELCAS (M) is constructed, offloading operations are
similar to those of a conventional pier. Container-handling operations
consist primarily of transferring containers from lighterage vessels
(e.g., Landing Craft Utility or Landing Craft Mechanized) to the pier.
Empty trucks or trailers are driven onto a turntable at the seaward end
of the ELCAS (M) and are loaded with containers using the same cranes
from construction. The ELCAS (M) is wide enough to accommodate two-way
traffic. Rolling stock may be lifted by crane to the pier and driven to
the beach as well. Operations typically involve the use of two
forklifts and an average of six cargo trucks a day during the exercise.
Power for the operation of the turntable and the lighting of the ELCAS
(M) is provided by up to two 30-kilowatt (kW) and two 100-kW
generators.
The ELCAS (M) is dismantled by removing the pontoon sections and
extracting the piles with a vibratory hammer, which takes approximately
6 minutes per pile, over the course of 10 days. Typically, 12 piles are
removed in a day. On the beach, the modified area is re-graded to its
original elevation.
Duration and Location
The JLOTS training areas are in nearshore waters at the JEB Little
Creek-Fort Story in Virginia and at Camp Lejeune in North Carolina. The
primary activity area consists of nearshore waters where the ELCAS (M)
training exercises would take place.
Description of Marine Mammals in the Area of the Specified Activities
There are six marine mammal species under NMFS jurisdiction with
possible or known occurrence in the Navy's JLOTS training area at the
JEB Little Creek-Fort Story in Virginia and at Camp Lejeune in North
Carolina, as indicated in Table 1. Four marine mammal species are
listed under the Endangered Species Act: North Atlantic right whale,
humpback whale, sei whale, and fin whale.
Table 1--Marine Mammal Occurrence Within the JLOTS Training Areas Off the Atlantic Coast
--------------------------------------------------------------------------------------------------------------------------------------------------------
Status Density in activity area \2\
---------------------------- (per km\2\)
Stock abundance best -------------------------------
Common name Scientific name Stock(s) (CV)/Min JEB Little
ESA MMPA Creek-Fort Camp Lejeune
Story
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
fin whale.................. Balaenoptera E strategic; Western North 3,522 (0.27)/2,817 0.00
physalus. depleted. Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
humpback whale............. Megaptera E depleted......... Gulf of Maine.... 823 (0)/823 0.000034 0.00009
novaeangliae.
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale. Eubalaena E strategic; Western North 444 (0)/(444) 0.000033
glacialis. depleted. Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
sei whale.................. Balaenoptera E strategic; Nova Scotia...... 357 (0.52)/236 0.000101
borealis. depleted.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes:
Atlantic spotted dolphin... Stenella frontalis ....... ................. Western North 26,798 (0.66)/16,151 0.0007728 0.153
Atlantic.
bottlenose dolphin \3\..... Tursiops truncatus ....... strategic........ Northern North 950 (0.23)/785 0.159 0.169871
Carolina
Estuarine System.
strategic........ Southern North 2,454 (0.53)/1,614 .............. ..............
Carolina
Estuarine System.
strategic; Western North 12,482 (0.32)/9,591 .............. ..............
depleted. Atlantic
Southern
Migratory
Coastal.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* E = endangered under the ESA.
NMFS has reviewed the information complied by the Navy on the
abundance, status, and distribution of marine mammal species in the
waters of the JLOTS training areas of the North Atlantic coast, which
was derived from peer reviewed literature, the Navy Marine Resource
Assessments, and NMFS Stock Assessment Reports. NMFS considers this
information to be the best available science with which we can conduct
the analyses necessary to propose these regulations and a five-year
LOA. This information may be viewed in the Navy's LOA application and
the Navy's Draft EA (see Availability). Additional information is
available in the NMFS Stock
[[Page 2638]]
Assessment Reports, which may be viewed at: https://www.nmfs.noaa.gov/pr/sars/species.htm.
Fin whales, North Atlantic right whale, humpback whale, and sei
whale are considered rare in the JLOTS training areas. These mysticete
whales tend to be distributed in relatively deeper waters outwards to
the offshore environment. Occurrences of these species in the shallow
nearshore waters off JEB Little Creek-Fort Story or Camp Lejeune are
expected to be rare. Due to their extremely rare occurrence within the
training areas, the Navy and NMFS do not anticipate any take of fin,
North Atlantic right, humpback, or sei whales. Therefore, these species
are not addressed further in this proposed rule.
Bottlenose Dolphin
Along the U.S. east coast, the bottlenose dolphin stock structure
is well studied. Of the management stocks identified by NMFS, three may
occur in the JLOTS activity area: The Northern North Carolina Estuarine
System stock, the Southern North Carolina Estuarine System stock, and
the Western North Atlantic Southern Migratory Coastal stock. The
bottlenose dolphin occurs in tropical to temperate waters of the
Atlantic Ocean as well as inshore, nearshore, and offshore waters of
the Gulf of Mexico and U.S. east coast. They occur in most enclosed or
semi-enclosed seas in habitats ranging from shallow, murky, estuarine
waters to deep, clear offshore waters in oceanic regions (Jefferson et
al. 2008; Wells et al. 2009). Bottlenose dolphins are also often found
in bays, lagoons, channels, and river mouths and are known to occur in
very deep waters of some ocean regions. Open ocean populations occur
far from land; however, population density appears to be highest in
nearshore areas (Scott and Chivers 1990). They are common in the lower
Chesapeake Bay and in Onslow Bay (Chesapeake Bay Program 2012;
McAlarney et al. 2011).
Bottlenose dolphins typically occur in groups of 2-15 individuals,
but significantly larger groups have also been reported (Shane et al.
1986; Kerr et al. 2005). Coastal bottlenose dolphins typically exhibit
smaller group sizes than the larger offshore form, as water depth
appears to be a significant influence on group size (Shane et al.
1986). Shallow, confined areas typically support smaller group sizes,
some degree of regional site fidelity, and limited movement patterns
(Shane et al. 1986; Wells et al. 1987). Bottlenose dolphins have a
varied diet, feeding on small fish, crustaceans, and squid (Wells and
Scott 2002).
An Unusual Mortality Event (UME) was declared for bottlenose
dolphins along the Atlantic coast in June 2013 and is ongoing to date.
An increased number of strandings have occurred from New York to
Florida, with 345 taking place in Virginia and 181 in North Carolina.
Off JEB Little Creek-Fort Story and Camp Lejeune, 32 and 10 bottlenose
dolphin strandings have occurred, respectively, since the declaration
of the UME. The UME is being tentatively attributed to cetacean
morbilivirus, but further research is ongoing (National Marine
Fisheries Service 2014).
Atlantic Spotted Dolphin
This species is found in nearshore tropical to warm-temperate
waters, predominantly over the continental shelf and upper slope. In
the western Atlantic, this species is distributed from New England to
Brazil and is found in the Gulf of Mexico as well as the Caribbean Sea
(Perrin 2008). Atlantic spotted dolphin sightings have been
concentrated in the slope waters north of Cape Hatteras, but in the
shelf waters south of Cape Hatteras sightings extend into the deeper
slope and offshore waters of the mid-Atlantic.
Atlantic spotted dolphins are highly gregarious, and are frequently
observed in mixed-aged groups numbering up to several hundred
individuals. Smaller subgroups, this species can be age and sex
segregated to a small degree. Tightly bonded mother and calf pairs are
typical to the age of 3 (Herzing n.d.).
The Atlantic spotted dolphin regularly occurs in the nearshore
waters south of Chesapeake Bay and near the continental shelf edge and
continental slope waters north of this region, usually at least 4.9 to
12.4 miles (8 to 20 km) offshore (Payne et al. 1984; Mullin and Fulling
2003; Davis et al. 1998; Perrin 2002; Perrin et al. 1994). Therefore,
while it is unlikely to occur in the shallow waters where the JLOTS
exercises would take place, it is more probable at Camp Lejeune than at
JEB Little Creek-Fort Story. Navy density data suggest this species may
be more likely to occur during summer months (U.S. Department of the
Navy 2012).
Potential Effects of the Specified Activity on Marine Mammals
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms have been derived using
auditory evoked potentials, anatomical modeling, and other data. From
this, Southall et al. (2007) designated ``functional hearing groups''
for marine mammals and estimate the lower and upper frequencies of
functional hearing of the groups. The functional groups and the
associated frequencies are indicated below. It should be noted,
however, that animals are less sensitive to sounds at the outer edge of
their functional range and most sensitive to sounds of frequencies
towards the middle of their functional hearing range:
Low frequency cetaceans (13 species of mysticetes):
Functional hearing is estimated to occur between approximately 7 Hz
and 30 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): Functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High frequency cetaceans (eight species of true
porpoises, six species of river dolphins, Kogia, the franciscana,
and four species of cephalorhynchids): Functional hearing is
estimated to occur between approximately 200 Hz and 180 kHz;
Phocid pinnipeds in Water: Functional hearing is
estimated to occur between approximately 75 Hz and 100 kHz; and
Otariid pinnipeds in Water: Functional hearing is
estimated to occur between approximately 100 Hz and 40 kHz.
As mentioned previously in this document, only bottlenose dolphin
and Atlantic spotted dolphin are likely to occur in the proposed JLOTS
training areas. Both of these two species are classified as mid-
frequency cetaceans (Southall et al. 2007). Because their hearing
frequency range overlaps with the frequencies associated with pile
driving, the Navy and NMFS determined that in-water pile removal and
pile driving during the JLOTS training activities have the potential to
result in behavioral harassment of the marine mammal species and stocks
in the vicinity of the proposed activity.
Marine mammals exposed to high-intensity sound repeatedly or for
prolonged periods can experience hearing threshold shift (TS), which is
the reduction of hearing sensitivity in the frequency ranges of the
sound source (Kastak et al. 1999; Schlundt et al. 2000; Finneran et al.
2002; 2005). TS can be permanent (PTS), in which case the reduction of
hearing sensitivity is unrecoverable, or temporary (TTS), in which case
the animal's reduction of hearing sensitivity will recover over time
(Southall et al. 2007). Since marine mammals depend on acoustic cues
for vital biological functions, such as orientation, communication,
finding prey, and avoiding predators, hearing impairment could result
in the reduced
[[Page 2639]]
ability of marine mammals to detect or interpret important sounds.
Repeated noise exposure that causes TTS could lead to PTS.
Experiments on a bottlenose dolphin (Tursiops truncatus) and beluga
whale (Delphinapterus leucas) showed that exposure to a single watergun
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p),
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds
returned to within 2 dB of the pre-exposure level within 4 minutes of
the exposure (Finneran et al. 2002). No TTS was observed in the
bottlenose dolphin. Although the source level of one hammer strike for
pile driving is expected to be much lower than the single watergun
impulse cited here, animals being exposed for a prolonged period to
repeated hammer strikes could receive more noise exposure in terms of
sound exposure level (SEL) than from the single watergun impulse
(estimated at 188 dB re 1 [mu]Pa2-s) in the aforementioned experiment
(Finneran et al. 2002).
Chronic exposure to excessive, though not high-intensity, noise
could cause masking at particular frequencies for marine mammals that
utilize sound for vital biological functions (Clark et al. 2009).
Masking is the obscuring of sounds of interest by other sounds, often
at similar frequencies. Masking generally occurs when sounds in the
environment are louder than, and of a similar frequency as, auditory
signals an animal is trying to receive. Masking can interfere with
detection of acoustic signals, such as communication calls,
echolocation sounds, and environmental sounds important to marine
mammals. Therefore, under certain circumstances, marine mammals whose
acoustical sensors or environment are being severely masked could also
be impaired.
Masking occurs at the frequency band which the animals utilize.
Since noise generated from in-water pile removal and driving is mostly
concentrated at low frequency ranges, it may have little effect on
high-frequency echolocation sounds by odontocetes (toothed whales).
However, the lower frequency man-made noises are more likely to affect
the detection of communication calls and other potentially important
natural sounds, such as surf and prey noise. The noises may also affect
communication signals when those signals occur near the noise band, and
thus reduce the communication space of animals (e.g., Clark et al.
2009), cause modification in vocalization patterns (e.g., Foote et al.
2004; Holt et al. 2009), and cause increased stress levels (Rolland et
al. 2012).
Unlike TS, masking can potentially impact the species at community,
population, or even ecosystem levels, as well as individual levels.
Masking affects both senders and receivers of the signals and could
have long-term chronic effects on marine mammal species and
populations. Recent science suggests that low frequency ambient sound
levels in the world's oceans have increased by as much as 20 dB (more
than 3 times, in terms of SPL) from pre-industrial periods, and most of
these increases are from distant shipping (Hildebrand 2009). All
anthropogenic noise sources, such as those from vessel traffic and pile
removal and driving, contribute to the elevated ambient noise levels,
thus intensifying masking.
Nevertheless, the sum of noise from the Navy's proposed JLOTS
training activities is confined to a limited area and is temporary and
intermittent; therefore, the noise generated is not expected to
contribute to increased ocean ambient noise. In addition, due to
shallow water depths in the training area, underwater sound propagation
of low-frequency sound (which is the major noise source from pile
driving) is expected to be poor.
Finally, in addition to TS and masking, exposure of marine mammals
to certain sounds could lead to behavioral disturbance (Richardson et
al. 1995), such as: Changing durations of surfacing and dives, number
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral
activities, such as socializing or feeding; visible startle response or
aggressive behavior, such as tail/fluke slapping or jaw clapping; and
avoidance of areas where noise sources are located.
The biological significance of many of these behavioral
disturbances is difficult to predict, especially if the detected
disturbances appear minor. However, the consequences of behavioral
modification could be expected to be biologically significant if the
change affects growth, survival, or reproduction. Some of these types
of significant behavioral modifications include:
Drastic change in diving/surfacing patterns (such as
those thought to be causing beaked whale strandings due to exposure
to military mid-frequency tactical sonar);
Extended habitat abandonment due to loss of desirable
acoustic environment; and
Extended cessation of feeding or social interaction.
The onset of behavioral disturbance from anthropogenic noise
depends on both external factors (characteristics of noise sources and
their paths) and the receiving animals (hearing, motivation,
experience, demography), and is therefore difficult to predict
(Southall et al. 2007).
The proposed training areas are not a prime habitat for marine
mammals, nor are they considered areas frequented by marine mammals.
Therefore, behavioral disturbances that could result from anthropogenic
noise associated with the Navy's JLOTS training activities are expected
to affect only a small number of marine mammals on an infrequent and
limited basis.
Anticipated Effects on Marine Mammal Habitat
No permanent impacts to marine mammal habitat are anticipated to
occur as a result of the proposed training activities. The Navy's
proposed JLOTS training activities would not modify the existing
habitat. Therefore, no restoration of the habitat would be necessary. A
temporary, small-scale loss of foraging habitat may occur for marine
mammals, if the marine mammals leave the area during pile extraction
and driving activities.
Acoustic energy created during pile driving and removal work would
have the potential to disturb fish within the vicinity of the training
areas. As a result, the affected areas could temporarily lose foraging
value to marine mammals. During pile driving, high noise levels may
exclude fish from the vicinity of the pile driving. Hastings and Popper
(2005) identified several studies that suggest fish will relocate to
avoid areas of damaging noise energy. If fish leave the area of
disturbance, the affected area may have a temporarily decreased
foraging value during impact hammering and vibratory removal of piles.
The duration of fish avoidance of this area after pile driving
stops is unknown. However, the affected area represents an extremely
small portion of the total foraging range of marine mammals that may be
present in and around the project area.
Because of the short duration of the activities and the relatively
small area of the habitat that may be affected, the impacts to marine
mammals and the food sources that they utilize are not expected to
cause significant or long-term consequences for individual marine
mammals or marine mammal populations.
Proposed Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible
methods of
[[Page 2640]]
taking pursuant to such activity, and other means of effecting the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.'' The NDAA of 2004 amended the MMPA as
it relates to military-readiness activities and the incidental take
authorization process such that ``least practicable adverse impact''
shall include consideration of personnel safety, practicality of
implementation, and impact on the effectiveness of the ``military
readiness activity.'' The training activities described in the JLOTS
LOA application are considered military readiness activities.
NMFS reviewed the proposed activities and the proposed mitigation
measures as described in the Navy's LOA application to determine if
they would result in the least practicable adverse effect on marine
mammals, which includes a careful balancing of the likely benefit of
any particular measure to the marine mammals with the likely effect of
that measure on personnel safety, practicality of implementation, and
impact on the effectiveness of the ``military readiness activity.''
Included below are standard operating procedures and the mitigation
measures the Navy proposed in its LOA application.
Standard Operating Procedures
Soft starts are performed during impact installation each day.
During a soft start, an initial set of strikes from the impact hammer
at reduced energy are performed before it is able to be operated at
full power and speed. The energy reduction of an individual hammer
cannot be quantified because they vary by individual drivers. Also, the
number of strikes will vary at reduced energy because raising the
hammer at less than full power and then releasing it results in the
hammer ``bouncing'' as it strikes the pile resulting in multiple
``strikes''. A benefit of a soft start is that marine species in the
vicinity are provided a ``warning'', giving them an opportunity to
leave the area at the first occurrence of the noise, prior to full
capacity operation. This may result in reducing exposures to underwater
noise levels that could cause behavioral disturbance or injury.
Mitigation Zone and Shutdown Measure
The Navy will establish a mitigation zone of 60 yards (55 m) around
the pile being driven. Visual observation will be conducted starting 30
minutes prior to, during, and 30 minutes after the exercise within the
mitigation zone. The exercise will not commence if concentrations of
floating vegetation (Sargassum or kelp patties) are observed in the
mitigation zone.
Pile driving will cease if a marine mammal is visually detected
within the mitigation zone. Pile driving will re[hyphen]commence if any
one of the following conditions is met: (1) The animal is observed
exiting the mitigation zone, (2) the animal is thought to have exited
the mitigation zone based on its course and speed, or (3) the
mitigation zone has been clear from any additional sightings for a
period of 30 minutes.
Marine Species Awareness Training
Consistent with current requirements, all personnel standing watch
on the bridge, Commanding Officers, Executive Officers, and Lookouts
will successfully complete the Marine Species Awareness Training prior
to standing watch or serving as a Lookout. The Marine Species Awareness
Training is designed to improve the effectiveness of visual
observations for marine resources, including marine mammals. The
training provides information on sighting cues, visual observation
tools and techniques, and sighting notification procedures.
Vessels
Vessels will avoid approaching marine mammals head on and will
maneuver to maintain a mitigation zone of 500 yards (457 m) around
observed whales and 200 yards (183 m) around all other marine mammals
(except bow riding dolphins), providing it is safe to do so.
North Atlantic Right Whale Mid-Atlantic Migration Corridor
A North Atlantic right whale migratory route is located off the
mid-Atlantic coast of the United States. This mitigation area applies
from November 1 through April 30 and is defined as follows:
Block Island Sound: The area bounded by
40[deg]51'53.7'' N/070[deg]36'44.9'' W; 41[deg]20'14.1'' N/
070[deg]49'44.1'' W; 41[deg]4'16.7'' N/071[deg]51'21'' W;
41[deg]35'56.5'' N/071[deg]38'26.1'' W; then back to first set of
coordinates.
New York and New Jersey: Within a 20 nm radius of the
following (as measured seaward from the COLREGS lines):
40[deg]29'42.2'' N/073[deg]55'57.6'' W.
Delaware Bay: Within a 20 nm radius of the following
(as measured seaward from the COLREGS lines): 38[deg]52'27.4''
North/075[deg]01'32.1'' West.
Chesapeake Bay: Within a 20 nm radius of the following
(as measured seaward from the COLREGS lines): 37[deg]00'36.9''
North/075[deg]57'50.5'' West.
Morehead City, North Carolina: Within a 20 nm radius of
the following (as measured seaward from the COLREGS lines):
34[deg]41'32.0'' North/076[deg]40'08.3'' West.
Wilmington, North Carolina, through South Carolina, and
to Brunswick, Georgia: Within a continuous area 20 nautical miles
from shore and west back to shore bounded by 34[deg]10'30'' North/
077[deg]49'12'' West; 33[deg]56'42'' North/077[deg]31'30'' West;
33[deg]36'30'' North/077[deg]47'06'' West; 33[deg]28'24'' North/
078[deg]32'30'' West; 32[deg]59'06'' North/078[deg]50'18'' West;
31[deg]50'00'' North/080[deg]33'12'' West; 31[deg]27'00'' North/
080[deg]51'36'' West.
When transiting within the migration corridor, the Navy will
practice increased vigilance, exercise extreme caution, and proceed at
the slowest speed that is consistent with safety, mission, and training
objectives.
Mitigation Conclusions
NMFS has carefully evaluated the Navy's proposed mitigation
measures and considered a range of other measures in the context of
ensuring 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.
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.
Any mitigation measure(s) prescribed by NMFS should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
1. Avoidance or minimization of injury or death of marine
mammals wherever possible (goals 2, 3, and 4 may contribute to this
goal).
2. A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to
received levels of in-water pile driving and pile removal, or other
activities expected to result in the take of marine mammals (this
goal may contribute to 1, above, or to reducing harassment takes
only).
3. A reduction in the number of times (total number or number at
biologically important time or location) individuals would be
exposed to received levels of in-water pile driving and pile
removal, or other activities expected to result in the take of
marine mammals (this goal may contribute to 1, above, or to reducing
harassment takes only).
4. A reduction in the intensity of exposures (either total
number or number at biologically
[[Page 2641]]
important time or location) to received levels of in-water pile
driving and pile removal, or other activities expected to result in
the take of marine mammals (this goal may contribute to 1, above, or
to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal
habitat, paying special attention to the food base, activities that
block or limit passage to or from biologically important areas,
permanent destruction of habitat, or temporary destruction/
disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Based on our evaluation of the Navy's proposed measures, as well as
other measures considered by NMFS, NMFS has preliminarily determined
that the proposed mitigation measures provide the means of effecting
the least practicable impact on marine mammals species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Proposed Monitoring
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
1. An increase in the probability of detecting marine mammals,
both within the mitigation zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more
data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals
are likely to be exposed to levels of in-water pile driving and pile
removal that we associate with specific adverse effects, such as
behavioral harassment, TTS, or PTS;
3. An increase in our understanding of how marine mammals
respond to stimuli expected to result in take and how anticipated
adverse effects on individuals (in different ways and to varying
degrees) may impact the population, species, or stock (specifically
through effects on annual rates of recruitment or survival) through
any of the following methods:
[ssquf] Behavioral observations in the presence of stimuli
compared to observations in the absence of stimuli (need to be able
to accurately predict received level, distance from source, and
other pertinent information);
[ssquf] Physiological measurements in the presence of stimuli
compared to observations in the absence of stimuli (need to be able
to accurately predict received level, distance from source, and
other pertinent information);
[ssquf] Distribution and/or abundance comparisons in times or
areas with concentrated stimuli versus times or areas without
stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
Operational Monitoring Measures
(1) Standard Watch Personnel
Ships operated by or for the Navy shall have personnel assigned to
stand watch at all times, day and night, when moving through the water
(underway). Watch personnel shall undertake extensive training in
accordance with the U.S. Navy Lookout Training Handbook or civilian
equivalent, including on-the-job instruction and a formal Personal
Qualification Standard program (or equivalent program for supporting
contractors or civilians), to certify that they have demonstrated all
necessary skills (such as detection and reporting of floating or
partially submerged objects). Watch personnel are composed of officers,
enlisted men and women, and civilian equivalents. Their duties may be
performed in conjunction with other job responsibilities, such as
navigating the ship or supervising other personnel. While on watch,
personnel employ visual search techniques, including the use of
binoculars, using a scanning method in accordance with the U.S. Navy
Lookout Training Handbook or civilian equivalent. After sunset and
prior to sunrise, watch personnel employ night visual search
techniques, which could include the use of night vision devices.
A primary duty of watch personnel is to detect and report all
objects and disturbances sighted in the water that may be indicative of
a threat to the ship and its crew, such as debris, a periscope,
surfaced submarine, or surface disturbance. Per safety requirements,
watch personnel also report any marine mammals sighted that have the
potential to be in the direct path of the ship as a standard collision
avoidance procedure. Because watch personnel are primarily posted for
safety of navigation, range clearance, and man-overboard precautions,
they are not normally posted while ships are moored to a pier. When
anchored or moored to a buoy, a watch team is still maintained but with
fewer personnel than when underway. When moored or at anchor, watch
personnel may maintain security and safety of the ship by scanning the
water for any indications of a threat (as described above).
While underway, Navy ships (with the exception of submarines)
greater than 65 ft. (20 m) in length have at least two watch personnel;
Navy ships less than 65 ft. (20 m) in length, surfaced submarines, and
contractor ships have at least one watch person. While underway, watch
personnel are alert at all times and have access to binoculars. Due to
limited manning and space limitations, small boats and some craft
transferring cargo from ship to shore do not have dedicated watch
personnel, and the boat crew is responsible for maintaining the safety
of the boat and surrounding environment.
All vessels use extreme caution and proceed at a ``safe speed'' so
they can take proper and effective action to avoid a collision with any
sighted object or disturbance and can be stopped within a distance
appropriate to the prevailing circumstances and conditions.
(2) Lookouts
Lookouts perform similar duties to standard watch personnel, and
are also responsible for satisfying mitigation requirements. The Navy
will have one Lookout positioned on the platform (which could include a
small boat, the elevated causeway, or the shore) that will maximize the
potential for sightings during pile driving and pile removal.
The Lookout positioned on the elevated causeway or the shore will
be dedicated solely to diligent observation of the air and surface of
the water. They will have multiple observation objectives, which
include but are not limited to detecting the presence of biological
resources and recreational or fishing boats, observing the mitigation
zone, and monitoring for equipment and personnel safety concerns. Due
to small boat manning and space restrictions, a Lookout positioned on a
small boat may include a member of the boat crew, and may be
responsible for tasks in addition to observing the air or surface of
the water (e.g., navigation of a rigid hull inflatable boat). However,
a boat Lookout will, to the maximum extent practicable and consistent
with safety and training requirements, comply with the observation
objectives described
[[Page 2642]]
above for a Lookout positioned on the elevated causeway or the shore.
Lookouts will also perform visual observation starting 30 minutes
prior to, during, and 30 minutes after the exercise within a mitigation
zone of 60 yards (55 m) around the pile being driven.
Integrated Comprehensive Monitoring Program
The Navy will use the existing Integrated Comprehensive Monitoring
Program (ICMP) and its new ``study-based'' approach to satisfy
monitoring requirements for the JLOTS MMPA authorization. To ensure
efficient implementation of the program and maintain consistency with
how the program is currently being implemented for the Atlantic Fleet
Training and Testing (AFTT) MMPA authorization, Navy recommends the
same AFTT adaptive management process and reporting deadlines be used
for the JLOTS authorization.
The ICMP is intended to coordinate monitoring efforts across all
regions where the Navy trains and tests and to allocate the most
appropriate level and type of effort for each range complex (U.S.
Department of the Navy 2010). Originally, the Navy monitoring program
was composed of a collection of ``range-specific'' monitoring plans,
each developed individually as part of Marine Mammal Protection Act and
Endangered Species Act compliance processes as environmental
documentation was completed. These individual plans established
specific monitoring requirements for each range complex and were
collectively intended to address the ICMP top-level goals.
A 2010 Navy-sponsored monitoring meeting in Arlington, Virginia,
initiated a process to critically evaluate the Navy monitoring plans
and begin development of revisions and updates to both the region-
specific plans as well as the ICMP. Discussions at that meeting as well
as the following Navy and NMFS annual adaptive management meeting
established a way ahead for continued refinement of the Navy's
monitoring program. This process included establishing a Scientific
Advisory Group of leading marine mammal scientists with the initial
task of developing recommendations that would serve as the basis for a
Strategic Planning Process for Navy monitoring. The Strategic Plan is
intended to be a primary component of the Integrated Comprehensive
Monitoring Program and provide a ``vision'' for Navy monitoring across
geographic regions--serving as guidance for determining how to most
efficiently and effectively invest the marine species monitoring
resources to address ICMP top-level goals and satisfy MMPA regulatory
requirements.
The objective of the Strategic Planning Process is to continue the
evolution of Navy marine species monitoring towards a single integrated
program, incorporating Scientific Advisory Group recommendations, and
establishing a more transparent framework for soliciting, evaluation,
and implementing monitoring work across the range complexes and testing
ranges. The Strategic Planning Process must consider a range of factors
in addition to the scientific recommendations including logistic,
operational, and funding considerations and will be revised regularly
as part of the annual adaptive management process.
Past and Current Monitoring in the Navy JLOTS Training Areas
NMFS has not issued regulations nor incidental take authorizations
to the Navy concerning its JLOTS training on the Atlantic coast.
Therefore, no past and current monitoring is available.
Proposed Reporting
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' Effective reporting is
critical both to compliance as well as ensuring that the most value is
obtained from the required monitoring. Some of the reporting
requirements are still in development and the final rule may contain
additional details not contained in the proposed rule. Additionally,
proposed reporting requirements may be modified, eliminated, or added
based on information or comments received during the public comment
period. Reports from individual monitoring events, results of analyses,
publications, and periodic progress reports for specific monitoring
projects will be posted to the U.S. Navy Marine Species Monitoring web
portal as they become available. Currently, there are several specific
reporting requirements pursuant to these proposed regulations:
General Notification of Injured or Dead Marine Mammals
Navy personnel would ensure that NMFS (regional stranding
coordinator) is notified immediately (or as soon as clearance
procedures allow) if an injured or dead marine mammal is found during
or shortly after, and in the vicinity of, any Navy training exercise.
The Navy would provide NMFS with species identification or description
of the animal(s), the condition of the animal(s) (including carcass
condition if the animal is dead), location, time of first discovery,
observed behaviors (if alive), and photographs or video (if available).
Annual Monitoring and Exercise Report
As noted above, reports from individual monitoring events, results
of analyses, publications, and periodic progress reports for specific
monitoring projects would be posted to the Navy's Marine Species
Monitoring web portal as they become available. Progress and results
from all monitoring activity conducted within the JLOTS training area
would be summarized in an annual report. This report shall detail the
monitoring protocol, summarize the data recorded during monitoring, and
estimate the number of marine mammals that may have been harassed.
Draft reports should be combined with the Navy's Atlantic Fleet
Training and Testing exercise and monitoring reports and submitted to
NMFS for review by February 13 (for exercises) and April 1 (for
monitoring) each year. NMFS would review the report and provide
comments for incorporation within 3 months.
Estimated Take of Marine Mammals
In the potential effects section, NMFS' analysis identified a
variety of impacts that could potentially result from exposure to noise
during the Navy's JLOTS training activities. In this section, we will
relate the potential effects to marine mammals from these sound sources
to the MMPA regulatory definitions of Level A and Level B Harassment
and attempt to quantify the effects that might occur from the specific
training activities that the Navy proposes in the JLOTS training areas.
Definition of Harassment
As mentioned previously, with respect to military readiness
activities, section 3(18)(B) of the MMPA defines ``harassment'' as: (i)
Any act that injures or has the significant potential to injure a
marine mammal or marine mammal stock in the wild [Level A Harassment];
or (ii) any act that disturbs or is likely to disturb a marine mammal
or marine mammal stock in the wild by causing disruption of natural
behavioral patterns, including, but not limited to, migration,
surfacing, nursing, breeding, feeding, or sheltering, to a point where
such behavioral patterns are abandoned or significantly altered [Level
B Harassment].
As discussed above, in-water pile removal and pile driving
(vibratory and
[[Page 2643]]
impact) generate loud noises that could potentially harass marine
mammals in the vicinity of the Navy's proposed JLOTS training
activities.
Currently, NMFS uses 120 dB re 1 [micro]Pa and 160 dB re 1
[micro]Pa at the received levels for the onset of Level B harassment
from non-impulse (vibratory pile driving and removal) and impulse
sources (impact pile driving) underwater, respectively. Table 2
summarizes the current NMFS marine mammal take criteria.
Table 2--Current Acoustic Exposure Criteria for Non-Explosive Sound
Underwater
------------------------------------------------------------------------
Criterion
Criterion definition Threshold
------------------------------------------------------------------------
Level A Harassment (Injury)..... Permanent 180 dB re 1
Threshold Shift [micro]Pa
(PTS) (Any level (cetaceans) 190
above that which dB re 1 [micro]Pa
is known to cause (pinnipeds) root
TTS). mean square
(rms).
Level B Harassment.............. Behavioral 160 dB re 1
Disruption (for [micro]Pa (rms).
impulse noises).
Level B Harassment.............. Behavioral 120 dB re 1
Disruption (for [micro]Pa (rms).
non-impulse
noise).
------------------------------------------------------------------------
Methods for Estimating Takes
The methods for estimating the number and types of exposure are
described in the sections below, followed by the method for quantifying
exposures of marine mammals to sources of energy exceeding those
threshold values. Exposure of each was determined by:
The potential of each species to be impacted by the
acoustic sources as determined by acoustic criteria for marine
mammals.
The potential presence of each species and their
estimated density inside the range to effect.
The range to effect for impact installation and
vibratory extraction (estimated by taking into account the source
levels, propagation loss, and thresholds at which each acoustic
criterion is met).
Potential exposures were calculated by multiplying the density of
each marine mammal species potentially present by the total impacted
area for each threshold value, rounding the result to the closest
integer, and then multiplying that result by the potential number of
days of pile driving.
Underwater Sound From Pile Driving
Sound levels produced by pile driving are greatly influenced by
factors including pile type, driving method, and the physical
environment in which the activity takes place. A number of studies have
examined sound pressure levels recorded from underwater pile driving
projects in California and Washington, creating a large body of data
for impact driving of steel pipe piles.
To determine the most appropriate sound pressure levels for this
project, data from studies which met the following parameters were
considered:
Pile size and type: 24-inch diameter steel pipe piles
Installation and removal method: vibratory and/or
impact hammer
Physical environment: water depth, sediment type
Details of the physical characteristics of the waters and substrate
off the proposed JLOTS locations were taken into consideration for
determining the size of ensonified zones. Source levels were selected
from NAVFAC Atlantic's comprehensive dataset based on similarity to
site conditions at JEB Little Creek-Fort Story (sand with shell debris
sediments, average depth 1-5 meters), and Camp Lejeune (lower
sedimentation with hard-bottom in some areas, depth around 7 meters),
equipment (i.e., diesel hammer), and lack of conditions that might
introduce extra noise into the measurements (e.g., riverine
environments). Calculated averages of selected source levels used as
proxies for modeling are summarized in Table 3.
Table 3--Summary of Source Levels
------------------------------------------------------------------------
dB re 1 [mu]Pa
Method Location rms
------------------------------------------------------------------------
Impact Installation........... JEB Little Creek-Fort 188
Story.
Camp Lejeune......... 189
Vibratory Removal............. JEB Little Creek-Fort 160
Story.
Camp Lejeune.........
------------------------------------------------------------------------
Take Zone Size Calculation
Modeling sound propagation is useful in evaluating noise levels to
determine distance from the pile driving activity that certain sound
levels may travel. The decrease in acoustic intensity as a sound wave
propagates outward from a source is known as transmission loss (TL).
The formula for transmission loss is:
TL = B * log10(R1/R2) + C *
R1,
Where
B = logarithmic (predominantly spreading) loss
C = linear (scattering and absorption) loss
R1 = range from source in meters
R2 = range from driven pile to original measurement
location (generally 10 m for pile driving activities)
The amount of linear loss (C) is proportional to the frequency of a
sound. Due to the low frequencies of sound generated by impact and
vibratory pile driving, this factor was assumed to be zero for all
calculations in this assessment and transmission loss was calculated
using only logarithmic spreading. Therefore, using practical spreading
(B = 15), the revised formula for transmission loss is TL = 15
log10 (R1/10).
The practical spreading loss model (TL =15 log10
(R1/10)) discussed above was used to calculate the
underwater propagation of pile driving sound in and around the three
proposed locations. A total of 30 days of pile driving were modeled for
JEB Little Creek-Fort Story and Camp Lejeune; 20 days of impact
driving, and 10 days of vibratory extraction. No noise mitigation
methods (bubble curtains, cofferdams, etc.) are proposed and therefore
no attenuation was included in the acoustic model.
Impact driving of each pile is expected to last no more than 15
minutes. Typically, 6 piles would be installed each day, for up to 20
days. Generally, two pile drivers are used, but not simultaneously:
While one is installing a pile, the other is being repositioned for the
next pile. For
[[Page 2644]]
vibratory extraction, the acoustic model assumed that 12 piles would be
extracted each day, lasting 6 minutes each, over the course of 10 days.
The range to effects (Table 4) for underwater noise is assumed to
take a circular shape around the notional pile bring driven at the
furthest offshore point of the ELCAS (M) (approximately 1,500 ft. [457
m] from shore). Zones with radii larger than 1,500 ft. (457 m) will be
truncated by the shoreline, and were modeled as semicircles extending
to the west, north, and east in the case of JEB Little Creek-Fort
Story; and north, east, and south at Camp Lejeune since the beaches at
each of the locations would represent the boundary for underwater
propagation. The calculated ranges assume no obstructions, and sounds
will attenuate as they encounter land or other solid obstacles. As a
result, the distances calculated may not actually be attained at the
two installations.
Table 4--Calculated Range to Effects and Zones of Influence for Marine Mammals During Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Range Area
----------------------------------------------------------------------------------------
Driving method Threshold JEB Little Creek- Fort JEB Little Creek-
Story Camp Lejeune Fort Story Camp Lejeune
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Drive.................... Injury: 180 dB re 1 37 yds (34 m)........... 44 yds (40 m).......... 0.001 mi\2\ 0.002 mi\2\
[micro]Pa rms. (0.0037 km\2\) (0.005 km\2\)
Behavioral: 160 dB re 1 805 yds (736 m)......... 938 yds (858 m)........ 0.328 mi\2\ 0.446 mi\2\
[micro]Pa rms. (0.85 km\2\) (1.156 km\2\)
----------------------------------------------------------------------------------------
Vibratory Pile Removal............... Injury: 180 dB re 1 n/a
[micro]Pa rms.
n/a
Behavioral: 120 dB re 1 5,077 yds (4,642 m)
[micro]Pa rms.
13.07 mi\2\ (33.84 km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: All sound levels expressed in dB re 1 [micro]PA rms; dB = decibel; rms = root mean square; m = meter; mi\2\ = square mile; km\2\ = square
kilometer; behavioral zones of influence are semi-circles based on notional distance from shore of the pile being driven; injury zones of influence
are circular since they will not extend to and therefore be attenuated by land.
Take Number Requested
Based on the size of the areas in which pile driving and extraction
may exceed established thresholds, the Navy applied estimated densities
for the bottlenose dolphin and Atlantic spotted dolphin and the number
of active pile driving days. The result shows that approximately 110
bottlenose dolphins and 50 Atlantic spotted dolphins could be taken by
Level B behavioral harassment annually, with a total of 550 bottlenose
dolphins and 250 Atlantic spotted dolphins taken by Level B behavioral
harassment during the five-year period of the rule (Table 5). The
annual percentage of takes of these species/stock is less than 6% of
the population.
Table 5--Species-Specific Level A and Level B Incidental Takes for JLOTS Training Activities
----------------------------------------------------------------------------------------------------------------
Percent of Total (5
Species Stock Annual population years)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin.................... Northern North Carolina 50 5.26 250
Estuarine System.
Southern North Carolina 60 2.44 300
Estuarine System.
Atlantic spotted dolphin.............. Western North Atlantic.. 50 0.18 250
----------------------------------------------------------------------------------------------------------------
Analysis and Preliminary Determinations
Negligible Impact
Negligible impact is ``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'' (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes,
alone, is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' through behavioral harassment,
NMFS must consider other factors, such as the likely nature of any
responses (their intensity, duration, etc.), the context of any
responses (critical reproductive time or location, migration, etc.), as
well as the number and nature of estimated Level A harassment takes,
the number of estimated mortalities, and effects on habitat.
The Navy's proposed JLOTS training activity would involve pile
driving and removal activities during the training exercise. Elevated
noise levels are expected to be generated as a result of these
activities. However, the source levels generated by the pile driving
and removal activities are expected be low due to the low-power hammer
being used. In addition, given the standard operating procedure of soft
starts and required mitigation and monitoring such as shutdown measures
when marine mammals are sighted approaching the mitigation zone, no
injuries or mortalities are anticipated to occur as a result of the
Navy's proposed JLOTS training activities, and none are proposed to be
authorized. In addition, as described above, marine mammals in the area
would not be exposed to activities or sound levels which would result
in hearing impairment (TTS or PTS) or non-auditory physiological
effects.
In-water construction activities would occur in nearshore shallow
waters at the JEB Little Creek-Fort Story in Virginia and at Camp
Lejeune in North Carolina. The proposed training areas are not
considered significant habitat for marine mammals. Marine mammals
approaching the action area would likely be traveling or
opportunistically foraging. There are no rookeries or major
[[Page 2645]]
haul-out sites nearby, foraging hotspots, or other ocean bottom
structure of significant biological importance to marine mammals that
may be present in the marine waters in the vicinity of the training
areas. The proposed training areas are not prime habitats for marine
mammals, nor are they considered areas frequented by marine mammals.
Therefore, behavioral disturbances that could result from anthropogenic
noise associated with the JLOTS training activities are expected to
affect only a small number of marine mammals on an infrequent basis.
Although it is possible that some individual marine mammals may be
exposed to sounds from in-water pile driving activities more than once,
the duration of these multi-exposures is expected to be low since
animals would be constantly moving in and out of the area and in-water
pile driving activities would not occur continuously throughout the
day.
Marine mammals may be temporarily impacted by noise from pile
driving and pile removal activities. These low intensity, localized,
and short-term noise exposures may cause brief startle reactions or
short-term behavioral modifications by the animals. These reactions and
behavioral changes are expected to subside quickly when the exposures
cease. Moreover, marine mammals are expected to avoid the area during
in-water construction because animals generally move away from active
sound sources, thereby reducing exposure and impacts. In addition,
through soft starts, a standard operating procedure, marine mammals are
expected to move away from a sound source that is annoying prior to its
becoming potentially injurious, and detection of marine mammals by
lookouts would enable the implementation of shutdowns to avoid injury,
serious injury, or mortality. In-water pile driving and pile removal
are expected to occur for about 20 days and 10 days total annually at
each location, respectively. Repeated exposures of individuals to
levels of sound that may cause Level B harassment are unlikely to
result in hearing impairment or to significantly disrupt foraging
behavior. Thus, even repeated Level B harassment of some small subset
of an overall stock is unlikely to result in any significant realized
decrease in fitness to those individuals, and thus would not result in
any adverse impact to the stock as a whole. Level B harassment will be
reduced to the level of least practicable impact through use of
mitigation measures described herein and, if sound produced by project
activities is sufficiently disturbing, animals are likely to simply
avoid the project area while the activity is occurring.
Based on the application and subsequent analysis, the impact of the
described in-water pile driving activities may result in, at most,
short-term modification of behavior by small numbers of marine mammals
within the action area. No injury, serious injury, or mortality is
expected to occur and due to the nature, degree, and context of the
Level B harassment anticipated, the activity is not expected to impact
rates of recruitment or survival.
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 proposed monitoring and
mitigation measures, NMFS finds preliminarily that the total marine
mammal take from the Navy's JLOTS training activity will have a
negligible impact on the affected marine mammal species or stocks.
Endangered Species Act (ESA)
No species listed under the ESA are expected to be affected by
these activities. Therefore, NMFS has determined that a section 7
consultation under the ESA is not required.
NEPA
NMFS has participated as a cooperating agency on the JLOTS draft
EA, which is scheduled to be published on January 6, 2015. The JLOTS
draft EA will be posted on NMFS' Web site: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS intends to adopt the Navy's
EA, if adequate and appropriate. Currently, we believe that the
adoption of the Navy's EA will allow NMFS to meet its responsibilities
under NEPA for the issuance of regulations and a five-year LOA for
JLOTS training activities. If the Navy's JLOTS EA is deemed inadequate,
NMFS would supplement the existing analysis to ensure that we comply
with NEPA prior to the issuance of the final rule or LOA.
Classification
The Office of Management and Budget has determined that this
proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel
for Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
proposed rule, if adopted, would not have a significant economic impact
on a substantial number of small entities. The RFA requires federal
agencies to prepare an analysis of a rule's impact on small entities
whenever the agency is required to publish a notice of proposed
rulemaking. However, a federal agency may certify, pursuant to 5 U.S.C.
605(b), that the action will not have a significant economic impact on
a substantial number of small entities. The Navy, a federal agency, is
the sole entity that will be affected by this rulemaking. It is not a
small governmental jurisdiction, small organization, or small business,
as defined by the RFA. Any requirements imposed by an LOA issued
pursuant to these regulations, and any monitoring or reporting
requirements imposed by these regulations, would be applicable only to
the Navy. NMFS does not expect the issuance of these regulations or the
associated five-year LOA to result in any impacts to small entities
pursuant to the RFA. Because this action, if adopted, would only
directly affect the Navy, NMFS concludes the action would not result in
a significant economic impact on a substantial number of small
entities.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: December 23, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries.
For reasons set forth in the preamble, 50 CFR part 218 is proposed
to be amended as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 218 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart B is added to part 218 to read as follows:
Subpart B--Takes of Marine Mammals Incidental to Specified Activities;
U.S. Navy Joint Logistics Over-the-Shore (JLOTS) Training Activities in
Virginia and North Carolina
Sec.
218.10 Specified activity and specified geographical region.
218.11 Effective dates and definitions.
218.12 Permissible methods of taking.
218.13 Prohibitions.
218.14 Standard operating procedure and mitigation measures.
218.15 Requirements for monitoring and reporting.
218.16 Applications for Letters of Authorization.
218.17 Letters of Authorization.
[[Page 2646]]
218.18 Renewal of Letters of Authorization and Adaptive Management.
218.19 Modifications to Letters of Authorization.
Subpart B--Takes of Marine Mammals Incidental to Specified
Activities; U.S. Navy Joint Logistics Over-the-Shore (JLOTS)
Training Activities in Virginia and North Carolina
Sec. 218.10 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occurs incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the JLOTS training areas, which is in nearshore
shallow waters at the Joint Expeditionary Base (JEB) Little Creek-Fort
Story in Virginia and at Camp Lejeune in North Carolina.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the JLOTS training activities in the activity
areas any time of year, but no more than once annually at JEB Little
Creek-Fort Story, and once annually at Camp Lejeune.
Sec. 218.11 Effective dates and definitions.
(a) Regulations are effective [DATE OF FILING for public inspection
of the final rule with the Office of the Federal Register], through
[DATE FIVE YEARS AFTER DATE OF FILING for public inspection of the
final rule with the Office of the Federal Register].
Sec. 218.12 Permissible methods of taking.
(a) Under Letters of Authorization (LOAs) issued pursuant to Sec.
218.17, the Holder of the Letter of Authorization may incidentally, but
not intentionally, take marine mammals within the area described in
Sec. 218.10, provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
LOA.
(b) The activities identified in Sec. 218.10(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 218.10(c) is limited to JLOTS training activities,
by Level B behavioral harassment:
(1) Bottlenose dolphin (Tursiops truncatus)/Northern North Carolina
Estuarine System: 250 (50 per year);
(2) Bottlenose dolphin (Tursiops truncatus)/Southern North Carolina
Estuarine System: 300 (60 per year); and
(3) Atlantic spotted dolphin (Stenella frontalis)/Western North
Atlantic: 250 (50 per year).
Sec. 218.13 Prohibitions.
Notwithstanding takings contemplated in Sec. 218.12 and authorized
by an LOA issued under Sec. Sec. 216.106 of this chapter and Sec.
218.17, no person in connection with the activities described in Sec.
218.10 may:
(a) Take any marine mammal not specified in Sec. 218.12(c);
(b) Take any marine mammal specified in Sec. 218.12(c) other than
by incidental take as specified in Sec. 218.12(c);
(c) Take a marine mammal specified in Sec. 218.12(c) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or an LOA issued under Sec. Sec.
216.106 of this chapter and 218.17.
Sec. 218.14 Standard operating procedure and mitigation measures.
(a) When conducting training and testing activities, as identified
in Sec. 218.10, the mitigation measures contained in the LOA issued
under Sec. Sec. 216.106 of this chapter and 218.17 must be
implemented. These mitigation measures include, but are not limited to:
(1) Establishing mitigation zone. (i) A mitigation zone of 60 yards
(55 m) around the pile being driven shall be established.
(ii) Visual observation will be conducted starting 30 minutes prior
to, during, and 30 minutes after the ELCAS (M) exercise within the
mitigation zone. The exercise will not commence if concentrations of
floating vegetation (Sargassum or kelp patties) are observed in the
mitigation zone.
(2) Soft starts. (i) Soft starts, or gradually ramping up the power
of pile driving hammer, shall be performed during impact installation
each day.
(ii) During a soft start, an initial set of strikes from the impact
hammer at reduced energy are performed before it is able to be operated
at full power and speed.
(3) Shutdown measures. (i) Pile driving shall cease if a marine
mammal is visually detected within or approaching the mitigation zone.
(ii) Pile driving may re[hyphen]commence if any one of the
following conditions is met:
(A) The animal is observed exiting the mitigation zone,
(B) The animal is thought to have exited the mitigation zone based
on its course and speed, or
(C) The mitigation zone has been clear from any additional
sightings for a period of 30 minutes.
(b) Marine species awareness training. (1) All personnel standing
watch on the bridge, Commanding Officers, Executive Officers, and
Lookouts shall successfully complete the Marine Species Awareness
Training prior to standing watch or serving as a Lookout.
(2) The Marine Species Awareness Training shall be designed to
improve the effectiveness of visual observations for marine resources,
including marine mammals.
(3) The training shall provide information on sighting cues, visual
observation tools and techniques, and sighting notification procedures.
(c) Vessels. Vessels shall avoid approaching marine mammals head on
and shall maneuver to maintain a mitigation zone of 500 yards (457 m)
around observed whales and 200 yards (183 m) around all other marine
mammals (except bow riding dolphins), providing it is safe to do so.
(d) North Atlantic Right Whale Mid-Atlantic Migration Corridor.
When transiting within the following North Atlantic right whale Mid-
Atlantic migration corridor defined below between November 1 and April
30, the Navy shall practice increased vigilance, exercise extreme
caution, and proceed at the slowest speed that is consistent with
safety, mission, and training objectives:
(1) Block Island Sound: The area bounded by 40[deg]51'53.7'' N/
070[deg]36'44.9'' W; 41[deg]20'14.1'' N/070[deg]49'44.1'' W;
41[deg]4'16.7'' N/071[deg]51'21'' W; 41[deg]35'56.5'' N/
071[deg]38'26.1'' W; then back to first set of coordinates.
(2) New York and New Jersey: Within a 20 nm radius of the following
(as measured seaward from the COLREGS lines): 40[deg]29'42.2'' N/
073[deg]55'57.6'' W.
(3) Delaware Bay: Within a 20 nm radius of the following (as
measured seaward from the COLREGS lines): 38[deg]52'27.4'' North/
075[deg]01'32.1'' West.
(4) Chesapeake Bay: Within a 20 nm radius of the following (as
measured seaward from the COLREGS lines): 37[deg]00'36.9'' North/
075[deg]57'50.5'' West.
(5) Morehead City, North Carolina: Within a 20 nm radius of the
following (as measured seaward from the COLREGS lines):
34[deg]41'32.0'' North/076[deg]40'08.3'' West.
(6) Wilmington, North Carolina, through South Carolina, and to
Brunswick, Georgia: Within a continuous area 20 nautical miles from
shore and west back to shore bounded by 34[deg]10'30'' North/
077[deg]49'12'' West; 33[deg]56'42'' North/077[deg]31'30'' West;
33[deg]36'30'' North/077[deg]47'06'' West;
[[Page 2647]]
33[deg]28'24'' North/078[deg]32'30'' West; 32[deg]59'06'' North/
078[deg]50'18'' West; 31[deg]50'00'' North/080[deg]33'12'' West;
31[deg]27'00'' North/080[deg]51'36'' West.
Sec. 218.15 Requirements for monitoring and reporting.
(a) Monitoring measures--(1) Standard watch personnel. (i) Ships
operated by or for the Navy shall have personnel assigned to stand
watch at all times, day and night, when moving through the water
(underway).
(ii) Watch personnel shall undertake extensive training in
accordance with the U.S. Navy Lookout Training Handbook or civilian
equivalent, including on-the-job instruction and a formal Personal
Qualification Standard program (or equivalent program for supporting
contractors or civilians), to certify that they have demonstrated all
necessary skills (such as detection and reporting of floating or
partially submerged objects).
(iii) While on watch, watch personnel shall employ visual search
techniques, including the use of binoculars, using a scanning method in
accordance with the U.S. Navy Lookout Training Handbook or civilian
equivalent.
(iv) After sunset and prior to sunrise, watch personnel shall
employ night visual search techniques, which could include the use of
night vision devices.
(v) A primary duty of watch personnel is to detect and report all
objects and disturbances sighted in the water that may be indicative of
a threat to the ship and its crew, such as debris, a periscope,
surfaced submarine, or surface disturbance.
(vi) Per safety requirements, watch personnel also report any
marine mammals sighted that have the potential to be in the direct path
of the ship as a standard collision avoidance procedure. Because watch
personnel are primarily posted for safety of navigation, range
clearance, and man-overboard precautions, they are not normally posted
while ships are moored to a pier.
(vii) When anchored or moored to a buoy, a watch team is still
maintained but with fewer personnel than when underway.
(viii) When moored or at anchor, watch personnel may maintain
security and safety of the ship by scanning the water for any
indications of a threat.
(ix) While underway, Navy ships (with the exception of submarines)
greater than 65 ft. (20 m) in length have at least two watch personnel;
Navy ships less than 65 ft. (20 m) in length, surfaced submarines, and
contractor ships have at least one watch person. While underway, watch
personnel are alert at all times and have access to binoculars. Due to
limited manning and space limitations, small boats and some craft
transferring cargo from ship to shore do not have dedicated watch
personnel, and the boat crew is responsible for maintaining the safety
of the boat and surrounding environment.
(x) All vessels use extreme caution and proceed at a ``safe speed''
so they can take proper and effective action to avoid a collision with
any sighted object or disturbance and can be stopped within a distance
appropriate to the prevailing circumstances and conditions.
(2) Lookouts. (i) Lookouts shall perform similar duties to standard
watch personnel, and are also responsible for satisfying mitigation
requirements.
(ii) The Navy will have one Lookout positioned on the platform
(which could include a small boat, the elevated causeway, or the shore)
that will maximize the potential for sightings during pile driving and
pile removal.
(iii) The Lookout positioned on the elevated causeway or the shore
shall be dedicated solely to diligent observation of the air and
surface of the water. They shall have multiple observation objectives,
which include but are not limited to detecting the presence of
biological resources and recreational or fishing boats, observing the
mitigation zone, and monitoring for equipment and personnel safety
concerns.
(iv) A Lookout positioned on a small boat may include a member of
the boat crew, and may be responsible for tasks in addition to
observing the air or surface of the water (e.g., navigation of a rigid
hull inflatable boat). However, a boat Lookout shall, to the maximum
extent practicable and consistent with safety and training
requirements, comply with the observation objectives described above
for a Lookout positioned on the elevated causeway or the shore.
(v) Lookouts shall also perform visual observation starting 30
minutes prior to, during, and 30 minutes after the exercise within a
mitigation zone of 60 yards (55 m) around the pile being driven.
(3) Integrated comprehensive monitoring program. (i) The Navy shall
use the existing Integrated Comprehensive Monitoring Program (ICMP) and
its new ``study-based'' approach to satisfy monitoring requirements for
the JLOTS MMPA authorization.
(b) Reporting measures--(1) General notification of injured or dead
marine mammals. (i) Navy personnel would ensure that NMFS (regional
stranding coordinator) is notified immediately (or as soon as clearance
procedures allow) if an injured or dead marine mammal is found during
or shortly after, and in the vicinity of, any Navy training exercise.
(ii) The Navy shall provide NMFS with species identification or
description of the animal(s), the condition of the animal(s) (including
carcass condition if the animal is dead), location, time of first
discovery, observed behaviors (if alive), and photographs or video (if
available).
(2) Annual monitoring and exercise report. (i) Reports from
individual monitoring events, results of analyses, publications, and
periodic progress reports for specific monitoring projects would be
posted to the Navy's Marine Species Monitoring web portal as they
become available.
(ii) Progress and results from all monitoring activity conducted
within the JLOTS training area shall be summarized in an annual report.
This report shall detail the monitoring protocol, summarize the data
recorded during monitoring, and estimate the number of marine mammals
that may have been harassed.
(iii) Draft reports should be combined with the Navy's Atlantic
Fleet Training and Testing exercise and monitoring reports and
submitted to NMFS for review by February 13 (for exercises) and April 1
(for monitoring) each year. NMFS would review the report and provide
comments for incorporation within 3 months.
Sec. 218.16 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to the regulations in
this subpart, the U.S. citizen (as defined by Sec. 216.106 of this
chapter) conducting the activity identified in Sec. 218.10(c) (the
U.S. Navy) must apply for and obtain either an initial LOA in
accordance with Sec. 218.17 or a renewal under Sec. 218.18.
Sec. 218.17 Letters of Authorization.
(a) An LOA, unless suspended or revoked, will be valid for a period
of time not to exceed the period of validity of this subpart.
(b) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the LOA will be based on a
determination that the total number of marine mammals
[[Page 2648]]
taken by the activity as a whole will have no more than a negligible
impact on the affected species or stock of marine mammal(s).
Sec. 218.18 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. Sec. 216.106 of
this chapter and 218.17 for the activity identified in Sec. 218.10(c)
will be renewed based upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 218.18 will be undertaken and that
there will not be a substantial modification to the described work,
mitigation, or monitoring undertaken during the upcoming period of
validity;
(2) Timely receipt (by the dates indicated in these regulations) of
the monitoring reports required under Sec. 218.15(b); and
(3) A determination by the NMFS that the mitigation, monitoring,
and reporting measures required under Sec. 218.14 and the LOA issued
under Sec. Sec. 216.106 of this chapter and 218.17, were undertaken
and will be undertaken during the upcoming period of validity of a
renewed Letter of Authorization.
(b) If a request for a renewal of an LOA issued under this Sec.
216.106 of this chapter and Sec. 218.17 indicates that a substantial
modification, as determined by NMFS, to the described work, mitigation
or monitoring undertaken during the upcoming season will occur, NMFS
will provide the public a period of 30 days for review and comment on
the request. Review and comment on renewals of LOAs are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration;
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current LOA.
(c) A notice of issuance or denial of an LOA renewal will be
published in the Federal Register.
(d) NMFS, in response to new information and in consultation with
the Navy, may modify the mitigation or monitoring measures in
subsequent LOAs if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of mitigation and monitoring. Below
are some of the possible sources of new data that could contribute to
the decision to modify the mitigation or monitoring measures:
(1) Results from the Navy's monitoring from the previous year
(either from the JLOTS training areas or other locations).
(2) Compiled results of Navy-funded research and development (R&D)
studies (presented pursuant to the ICMP (Sec. 218.15(d)).
(3) Results from specific stranding investigations (either from the
JLOTS training areas or other locations, and involving coincident mid-
or high-frequency active sonar or explosives training or not involving
coincident use).
(4) Results from the Long Term Prospective Study.
(5) Results from general marine mammal and sound research (funded
by the Navy (or otherwise).
Sec. 218.19 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
LOA by NMFS, issued pursuant to Sec. Sec. 216.106 of this chapter and
218.17 and subject to the provisions of this subpart shall be made
until after notification and an opportunity for public comment has been
provided. For purposes of this paragraph, a renewal of an LOA under
Sec. 218.18, without modification (except for the period of validity),
is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 218.12(c), an LOA issued
pursuant to Sec. Sec. 216.106 of this chapter and 218.17 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. 2015-00558 Filed 1-16-15; 8:45 am]
BILLING CODE 3510-22-P