[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Proposed Rules]
[Pages 75631-75659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29498]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

RIN 0648-AW78


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Virginia Capes Range Complex

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take marine mammals incidental to training activities 
conducted within the Virginia Capes (VACAPES) Range Complex for the

[[Page 75632]]

period of April 2009 through April 2014. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is proposing regulations to govern that 
take and requesting information, suggestions, and comments on these 
proposed regulations.

DATES: Comments and information must be received no later than January 
12, 2009.

ADDRESSES: You may submit comments, identified by 0648-AW78, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 137.

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the Navy's application may be obtained by writing to the 
address specified above (See ADDRESSES), telephoning the contact listed 
above (see FOR FURTHER INFORMATION CONTACT), or visiting the internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The Navy's 
Draft Environmental Impact Statement (DEIS) for the VACAPES Range 
Complex was published on June 27, 2008, and may be viewed at http://www.VACAPESRangeComplexEIS.com. NMFS participated in the development of 
the Navy's DEIS as a cooperating agency under the National 
Environmental Policy Act (NEPA).

Background

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

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

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

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

Summary of Request

    On March 17, 2008, NMFS received an application from the Navy 
requesting authorization for the take of 13 species of cetacean 
incidental to the proposed training activities in VACAPES Range Complex 
over the course of 5 years. These training activities are classified as 
military readiness activities. The Navy states that these training 
activities may cause various impacts to marine mammal species in the 
proposed VACAPES Range Complex area. The Navy requests an authorization 
to take individuals of these cetacean species by Level B Harassment. 
Further, the Navy requests authorization to take 1 individual Atlantic 
spotted, 20 common, 1 pantropical spotted, and 3 striped dolphins per 
year by injury, and 1 individual common dolphin per year by mortality, 
as a result of the proposed training activities at VACAPES Range 
Complex. Please refer to Table 29 of the LOA application for detailed 
information of the potential exposures from explosive ordnance (per 
year) for marine mammals in the VACAPES Range Complex. However, due to 
the proposed mitigation and monitoring measures, NMFS does not believe 
the proposed action would result in marine mammal mortalities. 
Therefore, no mortality would be authorized for the Navy's VACAPES 
Range Complex training activities.

Background of Navy Request

    The Navy's mission is to maintain, train, and equip combat-ready 
naval forces capable of winning wars, deterring aggression, and 
maintaining freedom of the seas. Title 10, U.S. Code (U.S.C.) section 
5062 directs the Chief of Naval Operations to train all naval forces 
for combat. The Chief of Naval Operations meets that direction, in 
part, by conducting at-sea training exercises and ensuring naval forces 
have access to ranges, operating areas (OPAREAs) and airspace where 
they can develop and maintain skills for wartime missions and conduct 
research, development, test, and evaluation (RDT&E) of naval weapons 
systems.
    The VACAPES Range Complex represents an essential three-dimensional 
space that provides a realistic and safe training area for Navy 
personnel. For nearly a century the area has supported Navy training 
activities, and is now host to a wide range of training every year to 
ensure the U.S. military members are ready for combat.
    The VACAPES Range Complex is the principal training area for air, 
surface and submarine units located in Hampton Roads, Virginia. The 
VACAPES Range Complex is also the primary homeport of the Atlantic 
Fleet. The Hampton Roads area includes more than 80,000 active duty 
Navy personnel. In addition to serving as the site for essential Navy 
training, the VACAPES Range Complex is host to activities for the RDT&E 
of emerging technologies. The RDT&E activities addressed in the VACAPES 
EIS/OEIS are those RDT&E activities that are substantially similar to 
training, involving existing systems or systems with similar operating 
parameters.
    The VACAPES Study Area geographically encompasses offshore, near-
shore, and onshore OPAREAs,

[[Page 75633]]

ranges, and Special Use Airspace (SUA) (Figure 1 of the application). 
The lower Chesapeake Bay is also part of the Study Area, although no 
training involving explosions would be performed in this area. 
Together, components of the VACAPES Study Area encompass:
     27,661 square nautical miles (nm\2\) of sea space (not 
including the portion of the Lower Chesapeake Bay); and
     28,672 nm\2\ of SUA warning areas
    The portions of the VACAPES Study Area addressed in the Navy's 
application consist of the offshore OPAREA (surface and subsurface 
waters) and the SUA warning areas (and not the SUA associated with land 
ranges), and waters extending from the shoreline to the OPAREA boundary 
(Table 1 of the application). Table 6 of the LOA application provides a 
list of marine mammal species that have been confirmed and/or have the 
potential to occur in the VACAPES Study Area.
    The VACAPES OPAREA is a set of operating and maneuver areas with 
defined ocean surface and subsurface operating areas described in 
detail in Table 1 of the application. The OPAREA is located in the 
coastal and offshore waters of the western North Atlantic Ocean 
adjacent to Delaware, Maryland, Virginia, and North Carolina (Figure 1 
of the application; 27,661 nm\2\ of surface waters). The northernmost 
boundary of the OPAREA is located 37 nautical miles (nm) off the 
entrance to Delaware Bay at latitude 38[deg] 45' N, the farthest point 
of the eastern boundary is 184 nm east of Chesapeake Bay at longitude 
72[deg] 41' W, and the southernmost point is 105 nm southeast of Cape 
Hatteras, North Carolina, at latitude of 34[deg] 19' N. The western 
boundary of the OPAREA lies 3 nm from the shoreline at the boundary 
separating state and Federal waters.
    A warning area is airspace of defined dimensions, extending from 3 
nm outward from the U.S. coast, which contains activity that may be 
hazardous to nonparticipating aircraft. The purpose of such warning 
area is to warn nonparticipating pilots of the potential danger. A 
warning area may be located over domestic or international waters or 
both.

Description of the Specified Activities

    The Navy requests an authorization for take of marine mammals 
incidental to conducting training operations within the VACAPES Range 
Complex. These training activities consist of surface warfare, mine 
warfare, amphibious warfare, strike warfare, and vessel movement. The 
locations of these activities are described in Figure 1 of the 
application. A description of each of these training activities within 
the VACAPES Range Complex is provided below:

Surface Warfare

    Surface Warfare (SUW) supports defense of a geographical area 
(e.g., a zone or barrier) in cooperation with surface, subsurface, and 
air forces. SUW operations detect, localize, and track surface targets, 
primarily ships. Detected ships are monitored visually and with radar. 
Operations include identifying surface contacts, engaging with weapons, 
disengaging, evasion and avoiding attack, including implementation of 
radio silence and deceptive measures.
    For the proposed VACAPES Range Complex training operations, SUW 
involving the use of explosive ordnance includes air-to-surface Missile 
Exercises and air-to-surface Bombing Exercises that occur at sea.
    (1) Missile Exercise (Air-to-Surface) (MISSILEX (A-S)): This 
exercise would involve fixed winged aircraft crews and helicopter crews 
who launch missiles at at-sea surface targets with the goal of 
destroying or disabling the target. MISSILEX (A-S) training in the 
VACAPES Range Complex can occur during the day or at night in locations 
described in Figure 1 of the LOA application. Table 1 below summarizes 
the levels of MISSILEX planned in the VACAPES Range Complex for the 
proposed action.

                    Table 1. Levels of MISSILEX Planned in the VACAPES Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
           Operation                      Platform               System/Ordnance            Number of Events
----------------------------------------------------------------------------------------------------------------
Missile Exercise (MISSILEX)      MH-60S, HH-60H             AGM-114 (Hellfire          60 sorties (60 missiles)
 (Air to Surface)                                            missile)
                                --------------------------------------------------------------------------------
                                 F/A-18, P-3C, and P-8A     AGM-65 E/F (Maverick       20 sorties (20 missiles)
                                                             missile)
----------------------------------------------------------------------------------------------------------------

    (2) Bombing Exercise (BOMBEX) (A-S): This exercise would involve 
strike fighter aircraft (F/A-18s) delivering explosive bombs against 
at-sea surface targets with the goal of destroying the target. BOMBEX 
(A-S) training in the VACAPES Study Area occurs only during daylight 
hours in the locations described in Figure 1 of the LOA application. 
Table 2 below summarizes the levels of BOMBEX planned in the VACAPES 
Range Complex for the proposed action.

                     Table 2. Levels of BOMBEX Planned in the VACAPES Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
          Operation                 Platform              System/Ordnance                Number of Events
----------------------------------------------------------------------------------------------------------------
Bombing Exercise (BOMBEX)                F/A-18     MK-83/GBU-32 [1,000 lb High     5 events (20 bombs 4 bombs/
 (Air-to-Surface, At-Sea)                                  Explosive (HE) bomb]                          event)
----------------------------------------------------------------------------------------------------------------

Mine Warfare/Mine Exercises

    Mine Warfare (MIW) includes the strategic, operational, and 
tactical use of mines and mine countermine measures (MCM). MIW training 
events are also collectively referred to as Mine Exercises (MINEX). MIW 
training/MINEX utilizes shapes to simulate mines. These shapes are 
either concrete-filled shapes or metal shapes. No actual explosive 
mines are used during MIW training in the VACAPES Range Complex study 
area. MIW training or MINEX is divided into the following.
    (1) Mine laying: Crews practice the laying of mine shapes in 
simulated enemy areas;
    (2) Mine countermeasures: Crews practice ``countering'' simulated 
enemy mines to permit the maneuver of friendly vessels and troops.

[[Page 75634]]

``Countering'' refers to both the detection and identification of enemy 
mines, the marking and maneuver of vessels and troops around identified 
enemy mines and mine fields, and the disabling of enemy mines. A subset 
of mine countermeasures is mine neutralization. Mine neutralization 
refers to the disabling of enemy mines by causing them to self-detonate 
either by setting a small explosive charge in the vicinity of the enemy 
mine, or by using various types of equipment that emit a sound, 
pressure, or a magnetic field that causes the mine to trip and self-
detonate. In all cases, actual explosive (live) mines would not be used 
during training events. Rather, mine shapes are used to simulate real 
enemy mines. Table 3 below summarizes the levels of mine warfare/mine 
exercises planned in the VACAPES Range Complex for the proposed action.

          Table 3. Levels of Mine Warfare/Mine Exercises Planned in the VACAPES Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
           Operation                      Platform               System/Ordnance            Number of Events
----------------------------------------------------------------------------------------------------------------
Mine Neutralization              MH-60S                     AMNS                       30 rounds
                                --------------------------------------------------------------------------------
                                 EOD                        20 lb charges              24 events
----------------------------------------------------------------------------------------------------------------

    In the VACAPES Range Complex study areas, MIW training/MINEX events 
include the use of explosive charges for two and one types of mine 
countermeasures and neutralization training, respectively. This 
training would use the Airborne Mine Neutralization System (AMNS) and 
underwater detonations of mine shapes by Explosive Ordnance Disposal 
(EOD) divers. MIW training/MINEX would occur only during daylight hours 
in the locations described in Figure 1 of the LOA application.

Amphibious Warfare

    Amphibious Warfare (AMW) involves the utilization of naval 
firepower and logistics in combination with U.S. Marine Corps landing 
forces to project military power ashore. AMW encompasses a broad 
spectrum of operations involving maneuver from the sea to objectives 
ashore, ranging from shore assaults, boat raids, ship-to-shore 
maneuver, shore bombardment and other naval fire support, and air 
strike and close air support training. AMW that involves the use of 
explosive ordnance is limited to Firing Exercises (FIREX).
    During a FIREX, surface ships use their main battery guns to fire 
from sea at land targets in support of military forces ashore. On the 
east coast, the land ranges where FIREX training can take place are 
limited. Therefore, land masses are simulated during east coast FIREX 
training using the Integrated Maritime Portable Acoustic Scoring and 
Simulation System (IMPASS) system, a system of buoys that simulate a 
land mass. FIREX training using IMPASS would occur only during daylight 
hours in the locations described in Figure 1 of the LOA application. 
Table 4 below summarizes the levels of FIREX and IMPASS planned in the 
VACAPES Range Complex for the proposed action.

                                    Table 4. Levels of FIREX and IMPASS Planned in the VACAPES Range Complex Per Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Operation                               Platform                System/Ordnance                      Number of Events
--------------------------------------------------------------------------------------------------------------------------------------------------------
FIREX with IMPASS                                                          CG, DDG         5'' gun (IMPASS)                   22 events (858 HE rounds)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Strike Warfare

    Strike Warfare (STW) operations are the applications of offensive 
military power at any chosen time and place to help carry out national 
goals. The systems required to conduct STW include: weapons, launch 
platforms, and command and control systems, intelligence, surveillance, 
reconnaissance, and targeting systems, and pilots or crews to operate 
the systems. STW involving the use of explosive ordnance includes air-
to-air Missile Exercises (MISSILEX (A-A)).
    Strike fighter and electronic attack aircraft use sensors to detect 
radar signals from a simulated threat radar site and either simulate or 
actually launch an explosive or non-explosive high-speed anti-radiation 
missile (HARM) with the goal of destroying or disabling the threat 
radar site. HARM missiles are designed to detonate 30 - 60 ft (9 - 18 
m) above the water surface so as to not destroy the barge target below. 
Therefore HARM missiles are not included in the underwater explosive 
exposure modeling since no marine mammal exposures are anticipated. 
HARM training events are conducted in the daytime and at night in 
locations described in Figure 1 of the LOA application. Table 5 below 
summarizes the levels of HARMEX (A-A) planned in the VACAPES Range 
Complex for the proposed action.

                  Table 5. Levels of HARMEX (A-A) Planned in the VACAPES Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
            Operation                    Platform            System/Ordnance             Number of Events
----------------------------------------------------------------------------------------------------------------
HARM Missile Exercise (HARMEX)                 F/A-18             AGM-88 (HARM)        26 sorties (26 missiles)
----------------------------------------------------------------------------------------------------------------

Vessel Movement

    Vessel movements are associated with most training operations in 
the VACAPES Range Complex and include transits to and from the port. 
Some training operations are strictly vessel movements such as Man 
Overboard Drills, Tow/Be Towed Exercises, Underway Replenishment, 
Aircraft Carrier Flight Operations, and use of the transit lanes by 
submarines when surfaced. Currently, the number of Navy vessels 
operating in the VACAPES Range Complex study area varies based on 
training schedules and can range

[[Page 75635]]

from 0 to about 10 vessels at any given time. Ship sizes range from 362 
ft (110 m) for a SSN to 1,092 ft (333 m) for a CVN and speeds generally 
range from 10 to 14 knots during training operations. Operations 
involving vessel movements occur intermittently and are variable in 
duration, ranging from a few hours up to 2 weeks. These operations are 
widely dispersed throughout the operation areas, which is a vast area 
encompassing 27,661 nm\2\ (an area approximately the size of Indiana) 
for the VACAPES Range Complex. The Navy logs about 1,400 total vessel 
days within the Range Complex during a typical year. Consequently, the 
density of ships within the study area at any given time is extremely 
low (i.e., less than 0.0004 ships/nm\2\).

Description of Marine Mammals in the Area of the Specified Activities

    There are 34 marine mammal species with possible or confirmed 
occurrence in the VACAPES Range Complex. As indicated in Table 6, there 
are 33 cetacean species (7 mysticetes and 26 odontocetes) and one 
pinniped species. Table 6 also includes the federal status of these 
marine mammal species. Six marine mammal species listed as federally 
endangered under the Endangered Species Act (ESA) occur in the VACAPES 
Range Complex: the humpback whale, North Atlantic right whale, sei 
whale, fin whale, blue whale, and sperm whale. Although it is possible 
that any of the 34 species of marine mammals may occur in the VACAPES 
Range Complex, only 24 of those species are expected to occur regularly 
in the region.

                        Table 6. Marine Mammal Species Found in the VACAPES Range Complex
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       Family and Scientific Name                     Common Name                       Federal Status
----------------------------------------------------------------------------------------------------------------
Order Cetacea
-----------------------------------------
Suborder Mysticeti (baleen whales)
-----------------------------------------
Eubalaena glacialis                       North Atlantic right whale          Endangered
----------------------------------------------------------------------------------------------------------------
Megaptera novaeangliae                    Humpback whale                      Endangered
----------------------------------------------------------------------------------------------------------------
Balaenoptera acutorostrata                Minke whale                         ..................................
----------------------------------------------------------------------------------------------------------------
B. brydei                                 Bryde's whale                       ..................................
----------------------------------------------------------------------------------------------------------------
B. borealis                               Sei whale                           Endangered
----------------------------------------------------------------------------------------------------------------
B. physalus                               Fin whale                           Endangered
----------------------------------------------------------------------------------------------------------------
B. musculus                               Blue whale                          Endangered
----------------------------------------------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
-----------------------------------------
Physeter macrocephalus                    Sperm whale                         Endangered
----------------------------------------------------------------------------------------------------------------
Kogia breviceps                           Pygmy sperm whale                   ..................................
----------------------------------------------------------------------------------------------------------------
K. sima                                   Dwarf sperm whale                   ..................................
----------------------------------------------------------------------------------------------------------------
Ziphius cavirostris                       Cuvier's beaked whale               ..................................
----------------------------------------------------------------------------------------------------------------
Mesoplodon minus                          True's beaked whale                 ..................................
----------------------------------------------------------------------------------------------------------------
M. europaeus                              Gervais' beaked whale               ..................................
----------------------------------------------------------------------------------------------------------------
M. bidens                                 Sowerby's beaked whale              ..................................
----------------------------------------------------------------------------------------------------------------
M. densirostris                           Blainville's beaked whale           ..................................
----------------------------------------------------------------------------------------------------------------
Steno bredanensis                         Rough-toothed dolphin               ..................................
----------------------------------------------------------------------------------------------------------------
Tursiops truncatus                        Bottlenose dolphin                  ..................................
----------------------------------------------------------------------------------------------------------------
Stenella attenuata                        Pantropical spotted dolphin         ..................................
----------------------------------------------------------------------------------------------------------------
S. frontalis                              Atlantic spotted dolphin            ..................................
----------------------------------------------------------------------------------------------------------------
S. longirostris                           Spinner dolphin                     ..................................
----------------------------------------------------------------------------------------------------------------
S. clymene                                Clymene dolphin                     ..................................
----------------------------------------------------------------------------------------------------------------
S. coeruleoalba                           Striped dolphin                     ..................................
----------------------------------------------------------------------------------------------------------------
Delphinus delphis                         Common dolphin                      ..................................
----------------------------------------------------------------------------------------------------------------
Lagenodephis hosei                        Fraser's dolphin                    ..................................
----------------------------------------------------------------------------------------------------------------
Lagenorhynchus acutus                     Atlantic white-sided dolphin        ..................................
----------------------------------------------------------------------------------------------------------------

[[Page 75636]]

 
Grampus griseus                           Risso's dolphin                     ..................................
----------------------------------------------------------------------------------------------------------------
Peponocephala electra                     Melon-headed whale                  ..................................
----------------------------------------------------------------------------------------------------------------
Feresa attenuata                          Pygmy killer whale                  ..................................
----------------------------------------------------------------------------------------------------------------
Pseudorca crassidens                      False killer whale                  ..................................
----------------------------------------------------------------------------------------------------------------
Orcinus orca                              Killer whale                        ..................................
----------------------------------------------------------------------------------------------------------------
Globicephala melas                        Long-finned pilot whale             ..................................
----------------------------------------------------------------------------------------------------------------
G. macrorhynchus                          Short-finned pilot whale            ..................................
----------------------------------------------------------------------------------------------------------------
Phocoena phocoena                         Harbor porpoise                     ..................................
----------------------------------------------------------------------------------------------------------------
Order Carnivora
-----------------------------------------
Suborder Pinnipedia
-----------------------------------------
Phoca vitulina                            Harbor seal                         ..................................
----------------------------------------------------------------------------------------------------------------

    The information contained herein relies heavily on the data 
gathered in the Marine Resource Assessments (MRAs). The Navy MRA 
Program was implemented by the Commander, Fleet Forces Command, to 
initiate collection of data and information concerning the protected 
and commercial marine resources found in the Navy's OPAREAs. 
Specifically, the goal of the MRA program is to describe and document 
the marine resources present in each of the Navy's OPAREAs. The MRA for 
the VACAPES OPAREA was recently updated in 2007 (DoN, 2008).
    The MRA data were used to provide a regional context for each 
species. The MRA represents a compilation and synthesis of available 
scientific literature (for example, journals, periodicals, theses, 
dissertations, project reports, and other technical reports published 
by government agencies, private businesses, or consulting firms), and 
NMFS reports including stock assessment reports, recovery plans, and 
survey reports.
    The density estimates that were used in previous Navy environmental 
documents have been recently updated to provide a compilation of the 
most recent data and information on the occurrence, distribution, and 
density of marine mammals. The updated density estimates used for the 
analyses are derived from the Navy OPAREA Density Estimates (NODE) for 
the Southeast OPAREAS report (DON, 2007).
    Density estimates for cetaceans were either modeled using available 
line-transect survey data or derived using available data in order of 
preference: (1) through spatial models using line-transect survey data 
provided by NMFS; (2) using abundance estimates from Mullin and Fulling 
(2003); (3) or based on the cetacean abundance estimates found in the 
most current NMFS stock assessment report (SAR) (Waring et al., 2007), 
which can be viewed at: http://www.nmfs.noaa.gov/pr/sars/species.htm.
    For the model-based approach, density estimates were calculated for 
each species within areas containing survey effort. A relationship 
between these density estimates and the associated
    environmental parameters such as depth, slope, distance from the 
shelf break, sea surface temperature, and chlorophyll a concentration 
was formulated using generalized additive models. This relationship was 
then used to generate a two-dimensional density surface for the region 
by predicting densities in areas where no survey data exist.
    The analyses for cetaceans were based on sighting data collected 
through shipboard surveys conducted by NMFS-Northeast Fisheries Science 
Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between 
1998 and 2005. Species-specific density estimates derived through 
spatial modeling were compared with abundance estimates found in the 
most current NMFS SAR to ensure consistency. All spatial models and 
density estimates were reviewed by and coordinated with NMFS Science 
Center technical staff and scientists with the University of St. 
Andrews, Scotland, Centre for Environmental and Ecological Modeling 
(CREEM). For a more detailed description of the methodology involved in 
calculating the density estimates provided in this LOA, please refer to 
the NODE report for the Southeast (DON 2007).

Potential Impacts to Marine Mammal Species

    The Navy considers that explosions associated with BOMBEX, 
MISSILEX, FIREX, and MINEX are the activities with the potential to 
result in Level A or Level B harassment or mortality of marine mammals. 
Vessel strikes were also analyzed for their potential effect to marine 
mammals.

Vessel Strikes

    Ship strikes are known to affect large whales and sirenians in the 
VACAPES Study Area. The most vulnerable marine mammals are those that 
spend extended periods of time at the surface in order to restore 
oxygen levels within their tissues after deep dives (e.g., the sperm 
whale). In addition, some baleen whales, such as the North Atlantic 
right whale seem generally unresponsive to vessel sound, making them 
more susceptible to vessel collisions (Nowacek et al., 2004). These 
species are primarily large, slow moving whales. Smaller marine 
mammals, for example, Atlantic bottlenose and Atlantic spotted 
dolphins-move quickly throughout the water column and are often seen 
riding the bow wave of large ships. Marine mammal responses to vessels 
may include avoidance and changes in dive pattern (NRC, 2003).
    After reviewing historical records and computerized stranding 
databases for evidence of ship strikes involving baleen and sperm 
whales, Laist et al. (2001) found that accounts of large whale ship 
strikes involving motorized

[[Page 75637]]

boats in the area date back to at least the late 1800s. Ship collisions 
remained infrequent until the 1950s, after which point they increased. 
Laist et al. (2001) report that both the number and speed of motorized 
vessels have increased over time for trans-Atlantic passenger services, 
which transit through the area. They concluded that most strikes occur 
over or near the continental shelf, that ship strikes likely have a 
negligible effect on the status of most whale populations, but that for 
small populations or segments of populations the impact of ship strikes 
may be significant.
    Although ship strikes may result in the mortality of a limited 
number of whales within a population or stock, Laist et al. (2001) also 
concluded that, when considered in combination with other human-related 
mortalities in the area (e.g., entanglement in fishing gear), these 
ship strikes may present a concern for whale populations.
    Of 11 species known to be hit by ships, fin whales are struck most 
frequently; right whales, humpback whales, sperm whales, and gray 
whales are all hit commonly (Laist et al., 2001). In some areas, one-
third of all fin whale and right whale strandings appear to involve 
ship strikes. Sperm whales spend long periods (typically up to 10 
minutes; Jacquet et al., 1996) ``rafting'' at the surface between deep 
dives. This could make them exceptionally vulnerable to ship strikes. 
Berzin (1972) noted that there were ``many'' reports of sperm whales of 
different age classes being struck by vessels, including passenger 
ships and tug boats. There were also instances in which sperm whales 
approached vessels too closely and were cut by the propellers (NMFS, 
2006d).
    The east coast is a principal migratory corridor for North Atlantic 
right whales that travel between the calving/nursery areas in the 
Southeastern United States and feeding grounds in the northeast U.S. 
and Canada. Transit to the Study Area from mid-Atlantic ports requires 
Navy vessels to cross the migratory route of North Atlantic right 
whales. Southward right whale migration generally occurs from mid- to 
late November, although some right whales may arrive off the Florida 
coast in early November and stay into late March (Kraus et al., 1993). 
The northbound migration generally takes place between January and late 
March. Data indicate that during the spring and fall migration, right 
whales typically occur in shallow water immediately adjacent to the 
coast, with over half the sightings (63 percent) occurring within 18.5 
km (10 NM), and 94.1 percent reported within 55 km (30 NM) of the coast 
(Knowlton et al., 2002). Given the low abundance of North Atlantic 
right whales relative to other species, the frequency of occurrence of 
vessel collisions to right whales suggests that the threat of ship 
strikes is proportionally greater to this species (Jensen and Silber, 
2003). Therefore, in 2004, NMFS proposed a right whale vessel collision 
reduction strategy to consider the establishment of operational 
measures for the shipping industry to reduce the potential for large 
vessel collisions with North Atlantic right whales while transiting to 
and from mid-Atlantic ports during right whale migratory periods. 
Although Navy vessel traffic generally represents only 2 - 3 percent of 
overall large vessel traffic, based on this biological characteristic 
and the presence of critical Navy ports along the whales of mid-
Atlantic migratory corridor, the Navy was the first Federal agency to 
proactively adopt additional mitigation measures for transits in the 
vicinity of mid-Atlantic ports during right whale migration. For 
purposes of these measures, the mid-Atlantic is defined broadly to 
include ports south and east of Block Island Sound southward to South 
Carolina.
    Accordingly, the Navy has proposed mitigation measures to reduce 
the potential for collisions with surfaced marine mammals (for more 
details refer to Proposed Mitigation section below). Based on the 
implementation of Navy mitigation measures, especially during times of 
anticipated right whale occurrence, and the relatively low density of 
Navy ships in the Study Area the likelihood that a vessel collision 
would occur is very low.

Assessment of Marine Mammal Response to Anthropogenic Sound

    Marine mammals respond to various types of anthropogenic sounds 
introduced into the ocean environment. Responses are typically subtle 
and can include shorter surfacings, shorter dives, fewer blows per 
surfacing, longer intervals between blows (breaths), ceasing or 
increasing vocalizations, shortening or lengthening vocalizations, and 
changing frequency or intensity of vocalizations (NRC, 2005). However, 
it is not known how these responses relate to significant effects 
(e.g., long-term effects or population consequences). The following is 
an assessment of marine mammal responses and disturbances when exposed 
to anthropogenic sound.
I. Physiology
    Potential impacts to the auditory system are assessed by 
considering the characteristics of the received sound (e.g., amplitude, 
frequency, duration) and the sensitivity of the exposed animals. Some 
of these assessments can be numerically based (e.g., temporary 
threshold shift [TTS] of hearing sensitivity, permanent threshold shift 
[PTS] of hearing sensitivity, perception). Others will be necessarily 
qualitative, due to lack of information, or will need to be 
extrapolated from other species for which information exists.
    Potential physiological responses to the sound exposure are ranked 
in descending order, with the most severe impact (auditory trauma) 
occurring at the top and the least severe impact occurring at the 
bottom (the sound is not perceived).
    Auditory trauma represents direct mechanical injury to hearing 
related structures, including tympanic membrane rupture, 
disarticulation of the middle ear ossicles, and trauma to the inner ear 
structures such as the organ of Corti and the associated hair cells. 
Auditory trauma is always injurious that could result in PTS. Auditory 
trauma is always assumed to result in a stress response.
    Auditory fatigue refers to a loss of hearing sensitivity after 
sound stimulation. The loss of sensitivity persists after, sometimes 
long after, the cessation of the sound. The mechanisms responsible for 
auditory fatigue differ from auditory trauma and would primarily 
consist of metabolic exhaustion of the hair cells and cochlear tissues. 
The features of the exposure (e.g., amplitude, frequency, duration, 
temporal pattern) and the individual animal's susceptibility would 
determine the severity of fatigue and whether the effects were 
temporary (TTS) or permanent (PTS). Auditory fatigue (PTS or TTS) is 
always assumed to result in a stress response.
    Sounds with sufficient amplitude and duration to be detected among 
the background ambient noise are considered to be perceived. This 
category includes sounds from the threshold of audibility through the 
normal dynamic range of hearing (i.e., not capable of producing 
fatigue).
    To determine whether an animal perceives the sound, the received 
level, frequency, and duration of the sound are compared to what is 
known of the species' hearing sensitivity.
    Since audible sounds may interfere with an animal's ability to 
detect other sounds at the same time, perceived sounds have the 
potential to result in

[[Page 75638]]

auditory masking. Unlike auditory fatigue, which always results in a 
stress response because the sensory tissues are being stimulated beyond 
their normal physiological range, masking may or may not result in a 
stress response, depending on the degree and duration of the masking 
effect. Masking may also result in a unique circumstance where an 
animal's ability to detect other sounds is compromised without the 
animal's knowledge. This could conceivably result in sensory impairment 
and subsequent behavior change; in this case, the change in behavior is 
the lack of a response that would normally be made if sensory 
impairment did not occur. For this reason, masking also may lead 
directly to behavior change without first causing a stress response.
    The features of perceived sound (e.g., amplitude, duration, 
temporal pattern) are also used to judge whether the sound exposure is 
capable of producing a stress response. Factors to consider in this 
decision include the probability of the animal being naive or 
experienced with the sound (i.e., what are the known/unknown 
consequences of the exposure).
    The received level is not of sufficient amplitude, frequency, and 
duration to be perceptible by the animal. By extension, this does not 
result in a stress response (not perceived).
    Potential impacts to tissues other than those related to the 
auditory system are assessed by considering the characteristics of the 
sound (e.g., amplitude, frequency, duration) and the known or estimated 
response characteristics of nonauditory tissues. Some of these 
assessments can be numerically based (e.g., exposure required for 
rectified diffusion). Others will be necessarily qualitative, due to 
lack of information. Each of the potential responses may or may not 
result in a stress response.
    Direct tissue effects - Direct tissue responses to sound 
stimulation may range from tissue shearing (injury) to mechanical 
vibration with no resulting injury. Any tissue injury would produce a 
stress response, whereas noninjurious stimulation may or may not.
    Indirect tissue effects - Based on the amplitude, frequency, and 
duration of the sound, it must be assessed whether exposure is 
sufficient to indirectly affect tissues. For example, the hypothesis 
that rectified diffusion occurs is based on the idea that bubbles that 
naturally exist in biological tissues can be stimulated to grow by an 
acoustic field. Under this hypothesis, one of three things could 
happen: (a) bubbles grow to the extent that tissue hemorrhage occurs 
(injury); (b) bubbles develop to the extent that a complement immune 
response is triggered or nervous tissue is subjected to enough 
localized pressure that pain or dysfunction occurs (a stress response 
without injury); or (c) the bubbles are cleared by the lung without 
negative consequence to the animal.
    No tissue effects - The received sound is insufficient to cause 
either direct (mechanical) or indirect effects to tissues. No stress 
response occurs.
II. The Stress Response
    The acoustic source is considered a potential stressor if, by its 
action on the animal, via auditory or nonauditory means, it may produce 
a stress response in the animal. The term ``stress'' has taken on an 
ambiguous meaning in the scientific literature, but with respect to the 
later discussions of allostasis and allostatic loading, the stress 
response will refer to an increase in energetic expenditure that 
results from exposure to the stressor and which is predominantly 
characterized by either the stimulation of the sympathetic nervous 
system (SNS) or the hypothalamic-pituitary-adrenal (HPA) axis (Reeder 
and Kramer, 2005). The SNS response to a stressor is immediate and 
acute and is characterized by the release of the catecholamine 
neurohormones norepinephrine and epinephrine (i.e., adrenaline). These 
hormones produce elevations in the heart and respiration rate, increase 
awareness, and increase the availability of glucose and lipids for 
energy. The HPA response is ultimately defined by increases in the 
secretion of the glucocorticoid steroid hormones, predominantly 
cortisol in mammals. The amount of increase in circulating 
glucocorticoids above baseline may be an indicator of the overall 
severity of a stress response (Hennessy et al., 1979). Each component 
of the stress response is variable in time; e.g., adrenalines are 
released nearly immediately and are used or cleared by the system 
quickly, whereas cortisol levels may take long periods of time to 
return to baseline.
    The presence and magnitude of a stress response in an animal 
depends on a number of factors. These include the animal's life history 
stage (e.g., neonate, juvenile, adult), the environmental conditions, 
reproductive or developmental state, and experience with the stressor. 
Not only will these factors be subject to individual variation, but 
they will also vary within an individual over time. In considering 
potential stress responses of marine mammals to acoustic stressors, 
each of these should be considered. For example, is the acoustic 
stressor in an area where animals engage in breeding activity? Are 
animals in the region resident and likely to have experience with the 
stressor (i.e., repeated exposures)? Is the region a foraging ground or 
are the animals passing through as transients? What is the ratio of 
young (naive) to old (experienced) animals in the population? It is 
unlikely that all such questions can be answered from empirical data; 
however, they should be addressed in any qualitative assessment of a 
potential stress response as based on the available literature.
    The stress response may or may not result in a behavioral change, 
depending on the characteristics of the exposed animal. However, 
provided a stress response occurs, we assume that some contribution is 
made to the animal's allostatic load. Allostasis is the ability of an 
animal to maintain stability through change by adjusting its physiology 
in response to both predictable and unpredictable events (McEwen and 
Wingfield, 2003). The same hormones associated with the stress response 
vary naturally throughout an animal's life, providing support for 
particular life history events (e.g., pregnancy) and predictable 
environmental conditions (e.g., seasonal changes). The allostatic load 
is the cumulative cost of allostasis incurred by an animal and is 
generally characterized with respect to an animal's energetic 
expenditure. Perturbations to an animal that may occur with the 
presence of a stressor, either biological (e.g., predator) or 
anthropogenic (e.g., construction), can contribute to the allostatic 
load (Wingfield, 2003). Additional costs are cumulative and additions 
to the allostatic load over time may contribute to reductions in the 
probability of achieving ultimate life history functions (e.g., 
survival, maturation, reproductive effort and success) by producing 
pathophysiological states. The contribution to the allostatic load from 
a stressor requires estimating the magnitude and duration of the stress 
response, as well as any secondary contributions that might result from 
a change in behavior.
    If the acoustic source does not produce tissue effects, is not 
perceived by the animal, or does not produce a stress response by any 
other means, we assume that the exposure does not contribute to the 
allostatic load. Additionally, without a stress response or auditory 
masking, it is assumed that there can be no behavioral change. 
Conversely, any immediate effect of exposure that produces an injury is 
assumed to also produce a stress response and contribute to the 
allostatic load.

[[Page 75639]]

III. Behavior
    Changes in marine mammal behavior are expected to result from an 
acute stress response. This expectation is based on the idea that some 
sort of physiological trigger must exist to change any behavior that is 
already being performed. The exception to this rule is the case of 
auditory masking. The presence of a masking sound may not produce a 
stress response, but may interfere with the animal's ability to detect 
and discriminate biologically relevant signals. The inability to detect 
and discriminate biologically relevant signals hinders the potential 
for normal behavioral responses to auditory cues and is thus considered 
a behavioral change.
    Impulsive sounds from explosions have very short durations as 
compared to other sounds like sonar or ship noise, which are more 
likely to produce auditory masking. Additionally the explosive sources 
analyzed in this document are used infrequently and the training events 
are typically of short duration. Therefore, the potential for auditory 
masking is unlikely and no impacts to marine mammals due to auditory 
masking are anticipated due to implementing the proposed action.
    Numerous behavioral changes can occur as a result of stress 
response. For each potential behavioral change, the magnitude in the 
change and the severity of the response needs to be estimated. Certain 
conditions, such as stampeding (i.e., flight response) or a response to 
a predator, might have a probability of resulting in injury. For 
example, a flight response, if significant enough, could produce a 
stranding event. Each altered behavior may also have the potential to 
disrupt biologically significant events (e.g., breeding or nursing) and 
may need to be classified as Level B harassment. All behavioral 
disruptions have the potential to contribute to the allostatic load. 
This secondary potential is signified by the feedback from the 
collective behaviors to allostatic loading.
IV. Life Function

IV.1. Proximate Life Functions

    Proximate life history functions are the functions that the animal 
is engaged in at the time of acoustic exposure. The disruption of these 
functions, and the magnitude of the disruption, is something that must 
be considered in determining how the ultimate life history functions 
are affected. Consideration of the magnitude of the effect to each of 
the proximate life history functions is dependent upon the life stage 
of the animal. For example, an animal on a breeding ground which is 
sexually immature will suffer relatively little consequence to 
disruption of breeding behavior when compared to an actively displaying 
adult of prime reproductive age.

IV.2. Ultimate Life Functions

    The ultimate life functions are those that enable an animal to 
contribute to the population (or stock, or species, etc.). The impact 
to ultimate life functions will depend on the nature and magnitude of 
the perturbation to proximate life history functions. Depending on the 
severity of the response to the stressor, acute perturbations may have 
nominal to profound impacts on ultimate life functions. For example, 
unit-level use of sonar by a vessel transiting through an area that is 
utilized for foraging, but not for breeding, may disrupt feeding by 
exposed animals for a brief period of time. Because of the brevity of 
the perturbation, the impact to ultimate life functions may be 
negligible. By contrast, weekly training over a period of years may 
have a more substantial impact because the stressor is chronic. 
Assessment of the magnitude of the stress response from the chronic 
perturbation would require an understanding of how and whether animals 
acclimate to a specific, repeated stressor and whether chronic 
elevations in the stress response (e.g., cortisol levels) produce 
fitness deficits.
    The proximate life functions are loosely ordered in decreasing 
severity of impact. Mortality (survival) has an immediate effect, in 
that no future reproductive success is feasible and there is no further 
addition to the population resulting from reproduction. Severe injuries 
may also lead to reduced survivorship (longevity) and prolonged 
alterations in behavior. The latter may further affect an animal's 
overall reproductive success and reproductive effort. Disruptions of 
breeding have an immediate impact on reproductive effort and may impact 
reproductive success. The magnitude of the effect will depend on the 
duration of the disruption and the type of behavior change that was 
provoked. Disruptions to feeding and migration can affect all of the 
ultimate life functions; however, the impacts to reproductive effort 
and success are not likely to be as severe or immediate as those 
incurred by mortality and breeding disruptions.

Explosive Ordnance Exposure Analysis

    The underwater explosion from a weapon would send a shock wave and 
blast noise through the water, release gaseous by-products, create an 
oscillating bubble, and cause a plume of water to shoot up from the 
water surface. The shock wave and blast noise are of most concern to 
marine animals. The effects of an underwater explosion on a marine 
mammal depends on many factors, including the size, type, and depth of 
both the animal and the explosive charge; the depth of the water 
column; and the standoff distance between the charge and the animal, as 
well as the sound propagation properties of the environment. Potential 
impacts can range from brief effects (such as behavioral disturbance), 
tactile perception, physical discomfort, slight injury of the internal 
organs and the auditory system, to death of the animal (Yelverton et 
al., 1973; O'Keeffe and Young, 1984; DoN, 2001). Non-lethal injury 
includes slight injury to internal organs and the auditory system; 
however, delayed lethality can be a result of individual or cumulative 
sublethal injuries (DoN, 2001). Immediate lethal injury would be a 
result of massive combined trauma to internal organs as a direct result 
of proximity to the point of detonation (DoN, 2001). Generally, 
exposures to higher levels of impulse and pressure levels would result 
in worse impacts to an individual animal.
    Injuries resulting from a shock wave take place at boundaries 
between tissues of different density. Different velocities are imparted 
to tissues of different densities, and this can lead to their physical 
disruption. Blast effects are greatest at the gas-liquid interface 
(Landsberg, 2000). Gas-containing organs, particularly the lungs and 
gastrointestinal tract, are especially susceptible (Goertner, 1982; 
Hill, 1978; Yelverton et al., 1973). In addition, gas-containing organs 
including the nasal sacs, larynx, pharynx, trachea, and lungs may be 
damaged by compression/expansion caused by the oscillations of the 
blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls can 
bruise or rupture, with subsequent hemorrhage and escape of gut 
contents into the body cavity. Less severe gastrointestinal tract 
injuries include contusions, petechiae (small red or purple spots 
caused by bleeding in the skin), and slight hemorrhaging (Yelverton et 
al., 1973).
    Because the ears are the most sensitive to pressure, they are the 
organs most sensitive to injury (Ketten, 2000). Sound-related damage 
associated with blast noise can be theoretically distinct from injury 
from the shock wave, particularly farther from the explosion. If an 
animal is able to hear a noise, at some level it can damage its hearing 
by

[[Page 75640]]

causing decreased sensitivity (Ketten, 1995) (See Assessment of Marine 
Mammal Response to Anthropogenic Sound Section above). Sound-related 
trauma can be lethal or sublethal. Lethal impacts are those that result 
in immediate death or serious debilitation in or near an intense source 
and are not, technically, pure acoustic trauma (Ketten, 1995). 
Sublethal impacts include hearing loss, which is caused by exposures to 
perceptible sounds. Severe damage (from the shock wave) to the ears 
includes tympanic membrane rupture, fracture of the ossicles, damage to 
the cochlea, hemorrhage, and cerebrospinal fluid leakage into the 
middle ear. Moderate injury implies partial hearing loss due to 
tympanic membrane rupture and blood in the middle ear. Permanent 
hearing loss also can occur when the hair cells are damaged by one very 
loud event, as well as by prolonged exposure to a loud noise or chronic 
exposure to noise. The level of impact from blasts depends on both an 
animal's location and, at outer zones, on its sensitivity to the 
residual noise (Ketten, 1995).
    The exercises that use explosives include: FIREX with IMPASS, 
MISSILEX, BOMBEX, and MINEX. Table 7 summarizes the number of events 
(per year by season) and specific areas where each occurs for each type 
of explosive ordnance used. For most of the operations, there is no 
difference in how many events take place between the different seasons. 
Fractional values are a result of evenly distributing the annual totals 
over the four seasons. For example, there are 45 Hellfire events per 
year that can take place in Air Kilo during any season, so there are 
11.25 events modeled for each season. However, the 20 lb charge MINEX 
events are more likely to take place in the summer and this is 
represented in the seasonal allocation of events.

                                          Table 7. Number of Explosive Events within the VACAPES Range Complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Sub-Area                  Ordnance              Winter               Spring              Summer               Fall            Annual Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               MISSILEX             ...................  ...................  ..................  ..................  106
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air-K                          Hellfire             11.25                11.25                11.25               11.25               ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
W-72A (2)                      Hellfire             3.75                 3.75                 3.75                3.75                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air-E, F, I, J                 Harm                 6.50                 6.50                 6.50                6.50                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air-K                          Maverick             5                    5                    5                   5                   ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               FIREX                ...................  ...................  ..................  ..................  22
--------------------------------------------------------------------------------------------------------------------------------------------------------
5C/D                           5'' rounds           1.83                 1.83                 1.83                1.83                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
7C/D and 8C/D                  5'' rounds           1.83                 1.83                 1.83                1.83                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
1C1/2                          5'' rounds           1.83                 1.83                 1.83                1.83                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               MINEX                ...................  ...................  ..................  ..................  54
--------------------------------------------------------------------------------------------------------------------------------------------------------
W-50 UNDET                     5 LB*                7.50                 7.50                 7.50                7.50                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
W-50 UNDET                     20 LB                4.00                 4.00                 12.00               4.00                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BOMBEX               ...................  ...................  ..................  ..................  5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air-K                          MK-83**              1.25                 1.25                 1.25                1.25                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The use of 3.24 lb charges during AMNS training were conservatively modeled as 5 lb charges.
** One event using the MK 83 bombs consists of 4 bombs being dropped in succession. For example, in VACAPES Air K there are 5 MK 83 events, which mean
  that a total of 20 bombs will be dropped per year.

Acoustic Environment

    Sound propagation (the spreading or attenuation of sound) in the 
oceans of the world is affected by several environmental factors: water 
depth, variations in sound speed within the water column, surface 
roughness, and the geo-acoustic properties of the ocean bottom. These 
parameters can vary widely with location.
    Four types of data are used to define the acoustic environment for 
each analysis site:
    Seasonal Sound Velocity Profiles (SVP) - Plots of propagation speed 
(velocity) as a function of depth, or SVPs, are a fundamental tool used 
for predicting how sound will travel. Seasonal SVP averages were 
obtained for each training area.
    Seabed Geo-acoustics - The type of sea floor influences how much 
sound is absorbed and how much sound is reflected back into the water 
column.
    Wind Speeds -\ Several environmental inputs, such as wind speed and 
surface roughness, are necessary to model acoustic propagation in the 
prospective training areas.
    Bathymetry data - Bathymetry data are necessary to model acoustic 
propagation and were obtained for each of the training areas.
Acoustic Effects Analysis
    The acoustic effects analysis presented in the following sections 
is briefly described for each major type of exercise. A more in-depth 
effects analysis is in Appendix A of the LOA application.
1. FIREX (with IMPASS)
    Modeling was completed for a 5-in. round, 8-lb NEW charge exploding 
at a depth of 1 ft (0.3 m). The analytical approach begins using a 
high-fidelity acoustic model to estimate energy in each 5-in. explosive 
round. Impact areas are calculated by summing the energy from multiple 
explosions over a firing exercise (FIREX) mission, and determining the 
impact area based on the thresholds and criteria. Level B exposures 
were determined based on

[[Page 75641]]

the 177 dB re 1 microPa\2\-sec (energy) criteria for behavioral 
disturbance (without TTS) due to the use of multiple explosions.
    Impact areas for a full FIREX (with IMPASS) event must account for 
the time and space distribution of 39 explosions, as well as the 
movement of animals over the several hours of the exercise. The total 
impact area for the 39-shot event is calculated as the sum of small 
effect areas for seven FIREX missions (each with four to six rounds 
fired) and one pre-FIREX action (with six rounds fired). Table 8 shows 
the Zone of Influence (ZOI) results of the model estimation.

                Table 8. Estimated ZOIs (km2) for a single FIREX (with IMPASS) Event (39 rounds)
----------------------------------------------------------------------------------------------------------------
                                    Level B ZOI @ 177 dB re 1
             Area*                  microPa\2\-sec (multiple      Level B ZOI @      Level A ZOI @ 205 dB re 1
                                        detonations only)           23 psi-ms       microPa\2\-sec or 13 psi-ms
----------------------------------------------------------------------------------------------------------------
5C/D                                                    NA\**\           3.7044                         0.16464
---------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
\*\Please see Figure 1 on page 2-2 of the LOA application for the locations of these areas.
\**\In these areas, which occur in deeper water, the 23 psi-ms criteria dominates over the 177 dB re 1
  microPa\2\-sec behavioral disturbance criteria and therefore was used in the analysis.

    The ZOI, when multiplied by the animal densities and the total 
number of events (Table 7), provides the exposure estimates for that 
animal species for the nominal exercise case of 39 5-in. explosive 
rounds. The potential effects would occur within a series of small 
impact areas associated with the pre-calibration rounds and missions 
spread out over a period of several hours. Additionally, target 
locations are changed from event to event and because of the time lag 
between events, it is highly unlikely, even if a marine mammal were 
present (not accounting for mitigation), that the marine mammal would 
be within the small exposure zone for more than one event.
    FIREX (with IMPASS) is restricted to three locations in the VACAPES 
Range Complex. In addition to other mitigation measures, dedicated 
lookouts monitor the target area for marine mammals before the 
exercise, during the deployment of the IMPASS array, and during the 
return to firing position. Prior to the exercise, the area would be 
visually monitored when the IMPASS sonobuoy array is being deployed by 
the ship at the detonation location, as well as while returning to the 
firing position. During the actual firing of the weapon, the 
participants involved must be able to observe the intended ordnance 
impact area to ensure the area is free of range transients, however, 
this observation would be conducted from the firing position or other 
safe distance. Due to distance between the firing position and the 
safety zone, lookouts are only expected to visually detect breaching 
whales, whale blows, and large pods of dolphins and porpoises. Firing 
would not commence unless the intended ordnance impact area is visible. 
Implementation of mitigation measures like these reduce the likelihood 
of exposure and potential effects in the ZOI and eliminate the 
likelihood of mortality.
2. BOMBEX
    Modeling was completed for one explosive source involved in BOMBEX, 
each assumed detonation at 1-m depth. The NEW used in simulations of 
the MK83 is 415.8-lb. Determining the ZOI for the thresholds in terms 
of total energy flux density (EFD), impulse, peak pressure and 1/3-
octave bands EFD must treat the sequential explosions differently than 
the single detonations. For the MK-83, two factors are involved for the 
sequential explosives that deal with the spatial and temporal 
distribution of the detonations as well as the effective accumulation 
of the resultant acoustics. In view of the ZOI determinations, the 
sequential detonations are modeled as a single point event with only 
the EFD summed incoherently. The multiple explosion energy criterion 
was used to determine the ZOI for the Level B without TTS exposure 
analysis.
    Table 9 shows the ZOI results of the model estimation. The ZOI, 
when multiplied by the animal densities and total number of events 
(Table 7), provides the exposure estimates for that animal species for 
the given bomb source.
    BOMBEX is restricted to one location in the VACAPES Range Complex. 
In addition to other mitigation measures, aircraft will survey the 
target area for marine mammals before and during the exercise. Ships 
will not fire on the target until the area is surveyed and determined 
to be free of marine mammals. The exercise will be suspended if any 
marine mammals enter the buffer area. Implementation of mitigation 
measures like these effectively reduce exposures in the ZOI and 
eliminate the likelihood of mortality.

                                                                           Table 9. Estimated ZOIs (km\2\) for BOMBEX
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Level B ZOI @ 177 dB re 1 microPa\2\-sec         Level B ZOI @ 182 dB re 1          Level A ZOI @ 205 dB re 1         Mortality ZOI @ 30.5 psi
                                                      (multiple detonations only)                microPa\2\-sec or 23 psi           microPa\2\-sec or 13 psi     -------------------------------
             Area                Ordnance  ----------------------------------------------------------------------------------------------------------------------
                                                Win         Spr         Sum        Fall        Win       Spr     Sum    Fall      Win       Spr     Sum    Fall     Win     Spr     Sum    Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Air-K                           MK-83*      135.04      555.51      713.99      912.05      NA         NA      NA      NA      4.28       4.01    6.39    4.55    0.05    0.05    0.05    0.05
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 75642]]

3. MINEX
    The Comprehensive Acoustic System Simulation/Gaussian Ray Bundle 
(CASS/GRAB) (OAML, 2002) model, modified to account for impulse 
response, shock-wave waveform, and nonlinear shock-wave effects, was 
run for acoustic-environmental conditions derived from the 
Oceanographic and Atmospheric Master Library (OAML) standard databases. 
The explosive source was modeled with standard similitude formulas, as 
in the Churchill FEIS. Because all the sites are shallow (less than 50 
m), propagation model runs were made for bathymetry in the range from 
10 m to 40 m.
    Estimated ZOIs varied as much within a single area as from one area 
to another, which had been the case for the Virtual At Sea Training 
(VAST)/IMPASS (DoN, 2003). There was, however, little seasonal 
dependence. As a result, the ZOIs are stated as mean values with a 
percentage variation. Generally, in the case of ranges determined from 
energy metrics, as the depth of water increases, the range shortens. 
The single explosion TTS-energy criterion (182 dB re 1 
microPa\2\sec) was dominant and therefore used to determine the 
ZOI for the Level B exposure analysis. Table 10 shows the ZOI results 
of the model estimation.
    The total ZOI, when multiplied by the animal densities and total 
number of events (Table 7), provides the exposure estimates for that 
animal species for each specified charge. Because of the time lag 
between detonations, it is highly unlikely, even if a marine mammal 
were present (not accounting for mitigation), that the marine mammal 
would be within the small exposure zone for more than one detonation. 
Underwater detonations are restricted to one area in the VACAPES Range 
Complex. In addition to other mitigation measures, observers will 
survey the target area for marine mammals for 30 minutes pre- and 30 
minutes post-detonation. Detonations will be suspended if a marine 
mammal enters the Zone of Influence and will only restart after the 
area has been clear for a full 30 minutes. Implementation of mitigation 
measures like these reduce the likelihood of exposure and potential 
effects in the ZOI and eliminate the likelihood of mortality.

               Table 10. Estimated ZOIs (km\2\) for MINEX
------------------------------------------------------------------------
                                                 ZOIs
          Threshold          -------------------------------------------
                                    5-lb shot            20-lb shot
------------------------------------------------------------------------
Level A ZOI @ 13 psi             0.03 km\2\  10%            minus> 10%
------------------------------------------------------------------------
Level B ZOI @ 182 dB re 1         0.2 km\2\ sec                  minus> 25%            minus> 25%
------------------------------------------------------------------------

4. MISSILEX (Hellfire, Harm, and Maverick)
    The HARM missile explodes no less than 30 feet (9.1 m) above the 
surface of the water, so it is assumed the amount of acoustic energy 
entering the water will be negligible. Therefore, modeling was 
completed for two of the explosive missiles involved in MISSILEX, each 
assumed detonation at 1-meter depth. The NEW used in simulations of the 
Hellfire and Maverick missiles are 8 lbs and 100 lbs, respectively. The 
single explosion TTS-energy criterion (182 dB re 1 microPa\2\-sec) was 
used to determine the ZOI for the Level B exposure analysis. Table 11 
shows the ZOI results of the model estimation. MISSILEX is restricted 
two locations in the VACAPES Range Complex. In addition to other 
mitigation measures, aircraft will survey the target area for marine 
mammals before and during the exercise. Ships will not fire on the 
target until the area is clear of marine mammals, and will suspend the 
exercise if any enter the buffer area. Implementation of mitigation 
measures like these reduce the likelihood of exposure and potential 
effects in the ZOI.

                                                                          Table 11. Estimated ZOIs (km\2\) for MISSILEX
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 @ 182 dB re 1 microPa\2\-s Level B ZOI or 23 psi    @ 205 dB re 1 microPa\2\-s Level A ZOI or 13             Mortality ZOI @ 30.5 psi
                                               ----------------------------------------------------                       psi                      ---------------------------------------------
             Area                  Ordnance                                                        ------------------------------------------------
                                                      Win           Spr         Sum        Fall         Win         Spr         Sum        Fall         Win         Spr        Sum        Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Air-K                           Hellfire        0.44            0.49        0.48        0.49        0.02        0.02        0.02        0.02        <0.01       <0.01       <0.01      <0.01
W-72A (2)                       Hellfire        0.58            0.60        0.57        0.59        0.03        0.02        0.02        0.02        <0.01       <0.01       <0.01      <0.01
Air-K                           Maverick        1.99            2.80        10.56       1.64        0.09        0.07        0.07        0.09        0.04        0.02        0.04       0.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    The total ZOI, when multiplied by the animal densities and total 
number of events (Table 7), provides the exposure estimates for that 
animal species for each specified missile. Because of the time lag 
between detonations, it is highly unlikely, even if a marine mammal 
were present (not accounting for mitigation), that the marine mammal 
would be within the small exposure zone for more than one detonation.

Summary of Potential Expsosures from Explosive Ordnance Use

    Explosions that occur in the VACAPES Range Complex are associated 
with training exercises that use explosive ordnance, including bombs 
(BOMBEX), missiles (MISSILEX), 5-in. explosive naval gun shells with 
FIREX (with IMPASS), as well as underwater detonations associated with 
Mine Neutralization training (MINEX). Explosive ordnance use is limited 
to specific training areas.
    An explosive analysis was conducted to estimate the number of 
marine mammals that could be exposed to impacts from explosions. Table 
12 provides a summary of the explosive analysis results. Exposure 
estimates could not be calculated for many species (blue whale, sei 
whale, Bryde's whale, killer whale, pygmy killer whale, false killer 
whale, melon-headed whale, spinner dolphin, Fraser's dolphin, Atlantic 
white-sided dolphin, and harbor porpoise) because density data could 
not be calculated due to the

[[Page 75643]]

limited available data for these species. However, since these species 
are considered rare in the VACAPES Range Complex, they are not expected 
to be exposed to explosive detonations. Fin, humpback whales, and sperm 
whales would have high detection rates at the surface because of their 
large body size and pronounced blows. Because of large group sizes, it 
is likely that lookouts would detect Atlantic spotted dolphins, 
bottlenose dolphins, Clymene, common, pantropical spotted dolphins, 
Risso's dolphins, rough-toothed dolphin, and striped dolphins. 
Implementation of mitigation measures will reduce the likelihood of 
exposure and potential effects.

  Table 12. Summary of Potential Exposures from Explosive Ordnance (per year) for Marine Mammals in the VACAPES
                                                  Range Complex
----------------------------------------------------------------------------------------------------------------
                                         Potential                              Potential
                                    Exposures @ 177 dB       Potential       Exposures @ 205       Potential
    Species/Training Operation       re 1 microPa\2\-s  Exposures @ 182 dB       dB re 1        Exposures @ 30.5
                                         (multiple       re 1 microPa\2\-s   microPa\2\-s or          psi
                                     detonations only)       or 23 psi            13 psi
----------------------------------------------------------------------------------------------------------------
Fin whale
-----------------------------------
         2BOMBEX training           2                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           2                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Humpback whale
-----------------------------------
         2BOMBEX training           2                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           2                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale
-----------------------------------
         2BOMBEX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Sperm whale
-----------------------------------
         2BOMBEX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           2                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           2                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Atlantic Spotted dolphin
-----------------------------------
         2BOMBEX training           9                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  4                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           30                  NA                  1                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           39                  4                   1                  0
----------------------------------------------------------------------------------------------------------------
Beaked whale
-----------------------------------

[[Page 75644]]

 
         2BOMBEX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin
-----------------------------------
         2BOMBEX training           17                  NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  7                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           5                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           22                  7                   0                  0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin
-----------------------------------
         2BOMBEX training           31                  NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  1                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           32                  1                   0                  0
----------------------------------------------------------------------------------------------------------------
Common dolphin
-----------------------------------
         2BOMBEX training           2,059               NA                  17                 0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  97                  2                  1
----------------------------------------------------------------------------------------------------------------
          2FIREX training           37                  NA                  1                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           2,096               97                  20                 1
----------------------------------------------------------------------------------------------------------------
Kogia spp.
-----------------------------------
         2BOMBEX training           3                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           3                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Minke whale
-----------------------------------
         2BOMBEX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------

[[Page 75645]]

 
Pantropical spotted dolphin
-----------------------------------
         2BOMBEX training           64                  NA                  1                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  3                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           2                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  1                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           66                  4                   1                  0
----------------------------------------------------------------------------------------------------------------
Pilot whales
-----------------------------------
         2BOMBEX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  2                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           7                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           8                   2                   0                  0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin
-----------------------------------
         2BOMBEX training           11                  NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  2                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           3                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           14                  2                   0                  0
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin
-----------------------------------
         2BOMBEX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           1                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Striped dolphin
-----------------------------------
         2BOMBEX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
        2MISSILEX training          NA                  26                  1                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           41                  NA                  2                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           42                  26                  3                  0
----------------------------------------------------------------------------------------------------------------
Note: Events were either modeled for 177 dB re 1 microPa\2\ sec due to multiple detonations (BOMBEX and FIREX)
  or modeled for 182 dB re 1 microPa\2\ sec or 23 psi due to single detonations (MISSILEX and MINEX). Therefore,
  for BOMBEX and FIREX the NA refers to the criteria that were less dominant and therefore not used in the
  analysis. For MISSILEX and MINEX the NA refers to the fact that these events are not multiple detonations and
  therefore not modeled at 177 dB re 1 microPa\2\ sec.


[[Page 75646]]

VI. Potential Effects of Exposures to Explosives
    Effects from exposure to explosives vary depending on the level of 
exposure. Animals exposed to levels that constitute MMPA Level B 
harassment may experience a behavioral disruption from the use of 
explosive ordnance. Behavioral responses can include shorter 
surfacings, shorter dives, fewer blows per surfacing, longer intervals 
between blows (breaths), ceasing or increasing vocalizations, 
shortening or lengthening vocalizations, and changing frequency or 
intensity of vocalizations (NRC, 2005). However, it is not known how 
these responses relate to significant effects (e.g., long-term effects 
or population consequences) (NRC, 2005). In addition, animals exposed 
to levels that constitute MMPA Level B harassment may experience a 
temporary threshold shift (TTS), which may result in a slight, 
recoverable loss of hearing sensitivity (DoN, 2001).
    Exposures that reach Level A harassment may result in long-term 
injuries such as permanent threshold shift (PTS). The resulting 
injuries may limit an animal's ability to find food, communicate with 
other animals, and/or interpret the environment around them. Impairment 
of these abilities can decrease an individual's chance of survival or 
impact their ability to successfully reproduce. Level A harassment will 
have a long-term impact on an exposed individual.
    Mortality of an animal will remove the animal entirely from the 
population as well as eliminate any future reproductive potential.
    Based on best available science, NMFS preliminarily concludes that 
takes from explosive ordnance and underwater detonations would result 
in only short-term effects to most individuals exposed and would likely 
not affect annual rates of recruitment or survival of the species. The 
mitigation measures presented below would further reduce the potential 
for exposures, and there would be no mortality of marine mammals from 
the proposed training activities. Table 13 provides a list of potential 
takes of marine mammal species as a result of the proposed VACAPES 
Range Complex training activities.

 Table 13. Summary of Potential Takes from Explosive Ordnance (per year) for Marine Mammals in the VACAPES Range
                                                     Complex
----------------------------------------------------------------------------------------------------------------
                    Species                        Level B harassment        Level A harassment       Mortality
----------------------------------------------------------------------------------------------------------------
Fin whale                                                             2                         0             0
----------------------------------------------------------------------------------------------------------------
Humpback whale                                                        2                         0             0
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale                                            0                         0             0
----------------------------------------------------------------------------------------------------------------
Sperm whale                                                           2                         0             0
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin                                             39                         5             0
----------------------------------------------------------------------------------------------------------------
Beaked whales                                                         0                         0             0
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                                                   22                         7             0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin                                                      32                         1             0
----------------------------------------------------------------------------------------------------------------
Common dolphin                                                    2,096                       117             0
----------------------------------------------------------------------------------------------------------------
Kogia sp.                                                             3                         0             0
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin                                          66                         5             0
----------------------------------------------------------------------------------------------------------------
Pilot whale                                                           8                         2             0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin                                                      14                         2             0
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin                                                 1                         0             0
----------------------------------------------------------------------------------------------------------------
Striped dolphin                                                      42                        29             0
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation Measures

General Maritime Measures

I. Personnel Training Lookouts
    The use of shipboard lookouts is a critical component of all Navy 
standard operating procedures. Navy shipboard lookouts (also referred 
to as ``watchstanders'') are highly qualified and experienced observers 
of the marine environment. Their duties require that they report all 
objects sighted in the water to the Officer of the Deck (OOD) (e.g., 
trash, a periscope, marine mammals, sea turtles) and all disturbances 
(e.g., surface disturbance, discoloration) that may be indicative of a 
threat to the vessel and its crew. There are personnel serving as 
lookouts on station at all times (day and night) when a ship or 
surfaced submarine is moving through the water.
    For the past few years, the Navy has implemented marine mammal 
spotter training for its bridge lookout personnel on ships and 
submarines. This training has been revamped and updated as the Marine 
Species Awareness Training (MSAT) and is provided to all applicable 
units. The lookout training program incorporates MSAT, which addresses 
the lookout's role in environmental protection, laws governing the 
protection of marine species, Navy stewardship commitments, and general 
observation information, including more detailed information for 
spotting marine mammals. MSAT has been reviewed by NMFS and 
acknowledged as suitable training. MSAT may also be viewed on-line at 
https://portal.navfac.navy.mil/go/msat.

[[Page 75647]]

    1. All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews will complete MSAT.
    2. Navy lookouts will undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    3. Lookout training will include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts will 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    4. Lookouts will be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    5. Surface lookouts would scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout would always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout would hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout would scan for approximately five 
seconds in as many small steps as possible across the field seen 
through the binoculars. They would search the entire sector in 
approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses would be lowered to allow the eyes to rest 
for a few seconds, and then the lookout would search back across the 
sector with the naked eye.
    6. At night, lookouts would not sweep the horizon with their eyes, 
because eyes do not see well when they are moving. Lookouts would scan 
the horizon in a series of movements that would allow their eyes to 
come to periodic rests as they scan the sector. When visually searching 
at night, they would look a little to one side and out of the corners 
of their eyes, paying attention to the things on the outer edges of 
their field of vision. Lookouts will also have night vision devices 
available for use.
II. Operating Procedures & Collision Avoidance
    1. Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order will 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    2. Commanding Officers will make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    3. While underway, surface vessels will have at least two lookouts 
with binoculars; surfaced submarines will have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals and sea turtles.
    4. On surface vessels equipped with a mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars will be properly 
installed and in good working order to assist in the detection of 
marine mammals and sea turtles in the vicinity of the vessel.
    5. Personnel on lookout will employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    6. After sunset and prior to sunrise, lookouts will employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    7. While in transit, naval vessels will be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    8. When whales have been sighted in the area, Navy vessels will 
increase vigilance and implement measures to avoid collisions with 
marine mammals and activities that might result in close interaction of 
naval assets and marine mammals. Such measures shall include changing 
speed and/or direction and would be dictated by environmental and other 
conditions (e.g., safety, weather).
    9. Naval vessels will maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted 
in their ability to maneuver. Restricted maneuverability includes, but 
is not limited to, situations when vessels are engaged in dredging, 
submerged operations, launching and recovering aircraft or landing 
craft, minesweeping operations, replenishment while underway and towing 
operations that severely restrict a vessel's ability to deviate course. 
Vessels will take reasonable steps to alert other vessels in the 
vicinity of the whale.
    10. Where feasible and consistent with mission and safety, vessels 
will avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    11. Floating weeds, algal mats, Sargassum rafts, clusters of 
seabirds, and jellyfish are good indicators of and marine mammal 
presence. Therefore, increased vigilance in watching for marine mammals 
will be taken where these indicators are present.
    12. Navy aircraft participating in exercises at sea will conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections will be reported immediately to the 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    13. All vessels will maintain logs and records documenting training 
operations to support event reconstruction, as necessary. Logs and 
records will be kept for a period of 30 days following completion of a 
major training exercise.

Coordination and Reporting Requirements

    The Navy will coordinate with the local NMFS Stranding Coordinator 
for any unusual marine mammal behavior and any stranding, beached live/
dead, or floating marine mammals that may occur at any time during or 
within 24 hours after completion of training activities. Additionally, 
the Navy will follow internal chain of command reporting procedures as 
promulgated through Navy instructions and orders.

[[Page 75648]]

Mitigation Measures Applicable to Vessel Transits in the Mid-Atlantic 
during North Atlantic Right Whale Migration

    For purposes of these measures, the mid-Atlantic is defined broadly 
to include ports south and east of Block Island Sound southward to 
South Carolina. The procedure described below would be established as 
mitigation measures for Navy vessel transits during North Atlantic 
right whale migratory seasons near ports located off the western North 
Atlantic, offshore of the eastern United States. The mitigation 
measures would apply to all Navy vessel transits, including those 
vessels that would transit to and from East Coast ports and OPAREAs. 
Seasonal migration of right whales is generally described by NMFS as 
occuring from October 15th through April 30th, when right whales 
migrate between feeding grounds farther north and calving grounds 
farther south. The Navy mitigation measures have been established in 
accordance with rolling dates identified by NMFS consistent with these 
seasonal patterns.
    NMFS has identified ports located in the western Atlantic Ocean, 
offshore of the southeastern United States, where vessel transit during 
right whale migration is of highest concern for potential ship strike. 
The ports include the Hampton Roads entrance to the Chesapeake Bay, 
which includes the concentration of Atlantic Fleet vessels in Norfolk, 
Virginia. Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated in Table 13 below and within a 20 nm (37 km) arc 
(except as noted) of the specified reference points.
    During the indicated months, Navy vessels would practice increased 
vigilance with respect to avoidance of vessel-whale interactions along 
the mid-Atlantic coast, including transits to and from any mid-Atlantic 
ports not specifically identified above.

                         Table 14. North Atlantic Right Whale Migration Port References
----------------------------------------------------------------------------------------------------------------
                Region                             Months                        Port Reference Points
----------------------------------------------------------------------------------------------------------------
South and East of Block Island                  Sep-Oct and Mar-Apr   37 km (20 nm) seaward of line 41[deg]4.49
                                                                          N, 71[deg]51.15 W and 41[deg]18.58 N,
                                                                                                 70[deg]50.23 W
----------------------------------------------------------------------------------------------------------------
New York/New Jersey                             Sep-Oct and Feb-Apr              40[deg]30.64 N, 73[deg]57.76 W
----------------------------------------------------------------------------------------------------------------
Delaware Bay (Philadelphia)                     Oct-Dec and Feb-Mar              38[deg]52.13 N, 75[deg]01.93 W
----------------------------------------------------------------------------------------------------------------
Chesapeake Bay                                  Nov-Dec and Feb-Apr              37[deg]01.11 N, 75[deg]57.56 W
(Hampton Roads and Baltimore)
----------------------------------------------------------------------------------------------------------------
North Carolina                                              Dec-Apr              34[deg]41.54 N, 76[deg]40.20 W
----------------------------------------------------------------------------------------------------------------
South Carolina                                              Oct-Apr          33[deg]11.84 N, 79[deg]08.99 W and
                                                                                 32[deg]43.39 N, 79[deg]48.72 W
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation Measures for Specific At-sea Training Events

    The proposed mitigation measures in the following sections are 
standard operating procedures currently in place and would be used in 
the future for all activities being analyzed in this document.
I. Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in. Explosive Rounds)
    Historically FIREX using IMPASS occurs in four areas in the VACAPES 
Range Complex. The locations were established to be far enough from 
shore to reduce civilian encounters (e.g., diving and recreational 
fishing), while remaining a reasonable day's distance from the homeport 
of Norfolk, Virginia of participating ships. Surface ships conducting 
FIREX with IMPASS do not have strict distance from land restrictions 
like aircraft that embark from shore-based facilities.
    1. FIREX using IMPASS would only be conducted in the four 
designated areas in the VACAPES Range Complex.
    2. Pre-exercise monitoring of the target area will be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position.
    Ships will maintain a lookout dedicated to visually searching for 
marine mammals 180o along the ship track line and 360o at each buoy 
drop-off location.
    3. ``Big Eyes'' on the ship will be used to monitor a 640 yd (585 
m) buffer zone around the target area for marine mammals during naval-
gunfire events. Due to the distance between the firing position and the 
buffer zone, lookouts are only expected to visually detect breaching 
whales, whale blows, and large pods of dolphins and porpoises.
    4. Ships will not fire on the target if marine mammals are detected 
within or approaching the 640 yd (585 m) buffer zone. If marine mammals 
are present, operations would be suspended. Visual observation will 
occur for approximately 45 minutes, or until the animal has been 
observed to have cleared the area and is heading away from the buffer 
zone.
    5. Post-exercise monitoring of the entire effect range will take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    6. FIREX with IMPASS will take place during daylight hours only.
    7. FIREX with IMPASS will only be used in Beaufort Sea State three 
(3) or less.
    8. The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    9. No firing would occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
II. Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs)
    This activity occurs in two locations in the VACAPES Study Area. 
The locations were established to be far enough from shore to reduce 
civilian encounters (e.g., diving and recreational fishing), while 
remaining within 150 nm from shore-based facilities (the established 
flight distance restriction for F-A18 jets during unit level training 
events).
    1. Aircraft will visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area will be made by flying at 1,500 ft

[[Page 75649]]

altitude or lower, if safe to do so, and at the slowest safe speed. 
Release of ordnance through cloud cover is prohibited: aircraft must be 
able to actually see ordnance impact areas. Survey aircraft should 
employ most effective search tactics and capabilities.
    2. A buffer zone of 5,100-yd (4,663 m) radius would be established 
around the intended target zone. The exercises will be conducted only 
if the buffer zone is clear of sighted marine mammals.
    3. At-sea BOMBEXs using live ordnance will occur during daylight 
hours only.
III. Air-to-Surface Missile Exercises (Explosive)
    1. Aircraft will initially survey the intended ordnance impact area 
for marine mammals. During the actual firing of the weapon, the 
aircraft involved must be able to observe the intended ordnance impact 
area to ensure the area is free of range transients, however, this 
observation would be conducted from the firing position or other safe 
distance. Visual inspection of the target area will be made by flying 
at 1,500 ft altitude or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yd (1,646 m) of sighted marine mammals.
IV. Mine Neutralization Training Involving Underwater Detonations (up 
to 20-lb charges)
    Mine neutralization involving underwater detonations occurs in 
shallow water (0 - 120 ft, or 0 - 36 m) and is executed by divers using 
scuba. NMFS issued a Biological Opinion (BO) in 2002 for underwater 
detonations of up to 20-lb explosive charges related to MINEX training 
(NMFS, 2002). Historically this activity has occurred in shallow water 
portions of W-50 in the VACAPES Study Area per this BO. This location 
is just offshore from NAS Oceana Dam Neck Annex, a restricted-access 
Naval Installation and overlaps an established Surface Danger Zone for 
live ordnance use, therefore civilian encounters are minimized. This 
location has a low bathymetric relief and a sand-silt bottom.
    These exercises utilize small boats that deploy from shore based 
facilities. Often times these small boats are rigid-hulled inflatable 
boats (RHIBs) which are designed for shallow water and have limited 
seaworthiness necessitating a nearshore location. The exercise is a 
one-day event that occurs only during daylight hours therefore the 
distance from shore is limited.
    1. This activity will only occur in W-50 of the VACAPES Range 
Complex.
    2. Observers will survey the Zone of Influence (ZOI), a 656 yd (600 
m) radius from detonation location, for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft will be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support will be 
utilized whenever assets are available.
    3. Detonation operations will be conducted during daylight hours.
    4. If a marine mammal is sighted within the ZOI, the animal will be 
allowed to leave of its own volition. The Navy will suspend detonation 
exercises and ensure the area is clear for a full 30 minutes prior to 
detonation.
    5. Divers placing the charges on mines and dive support vessel 
personnel will survey the area for marine mammals and will report any 
sightings to the surface observers. These animals will be allowed to 
leave of their own volition and the ZOI will be clear for 30 minutes 
prior to detonation.
    6. No detonations will take place within 3.2 NM (6 km) of an 
estuarine inlet (Chesapeake Bay Inlets).
    7. No detonations will take place within 1.6 nm (3 km) of 
shoreline.
    8. No detonations will take place within 1,000 ft (305 m) of any 
artificial reef, shipwreck, or live hard-bottom community.
    9. Personnel will record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.
Adaptive Management
    The final regulations governing the take of marine mammals 
incidental to Navy training exercises in VACAPES will contain an 
adaptive management component. The use of adaptive management will give 
NMFS the ability to consider new data from different sources to 
determine (in coordination with the Navy), on an annual basis, if new 
or modified mitigation or monitoring measures are appropriate for 
subsequent annual LOAs. Following are some of the possible sources of 
applicable data:
     Results from the Navy's monitoring from the previous year 
(either from VACAPES or other locations)
     Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document)
     Results from general marine mammal and sound research 
(funded by the Navy (described below) or otherwise)
    Mitigation measures could be modified or added if new data suggests 
that such modifications would have a reasonable likelihood of 
accomplishing the goals of mitigation laid out in this proposed rule 
and if the measures are practicable. NMFS would also coordinate with 
the Navy to modify or add to the existing monitoring requirements if 
the new data suggest that the addition of a particular measure would 
more effectively accomplish the goals of monitoring laid out in this 
proposed rule. The reporting requirements associated with this rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow NMFS to consider the data in issuing annual LOAs. NMFS and the 
Navy will meet annually prior to LOA issuance to discuss the monitoring 
reports, Navy R&D developments, and current science and whether 
mitigation or monitoring modifications are appropriate.

Monitoring and Reporting Measures

    The Navy would be required to cooperate with the NMFS, and any 
other Federal, state or local agency monitoring the impacts of the 
activity on marine mammals.
    The Navy must notify NMFS immediately (or as soon as clearance 
procedures allow) if the specified activity is thought to have resulted 
in the mortality or injury of any marine mammals, or in any take of 
marine mammals not identified in this document.
    The Navy must conduct all monitoring and/or research required under 
the Letter of Authorization, if issued. The monitoring methods proposed 
for use during training events in the VACAPES Range Complex include a 
combination of individual elements designed to allow a comprehensive 
assessment and include:
    (1) Vessel and aerial surveys
    (i) Visual surveillance of 2 events per year. The primary goal will 
be to survey two different types of explosive events with one of them 
being a multiple detonation event.
    (ii) For specified training events, aerial or vessel surveys will 
be used 1-2 days prior to, during (if reasonably safe), and 1-5 days 
post detonation. The variation in the number of days after allows for 
the detection of animals that gradually return to an area, if they 
indeed do change their distribution in response to underwater 
detonation events.

[[Page 75650]]

    (iii) Surveys will include any specified exclusion zone around a 
particular detonation point plus 2000 yards beyond the exclusion zone. 
For vessel-based surveys a passive acoustic system (hydrophone or towed 
array) could be used to determine if marine mammals are in the area 
before and/or after a detonation event. Depending on animals sighted, 
it may be possible to conduct focal surveys of animals outside of the 
exclusion zone (detonations could be delayed if marine mammals are 
observed within the exclusion zone) to record behavioral responses to 
the detonations.
    (iv) When conducting a particular survey, the survey team will 
collect:
    (A) species identification and group size;
    (B) location and relative distance from the detonation site;
    (C) the behavior of marine mammals including standard environmental 
and oceanographic parameters;
    (D) date, time and visual conditions associated with each 
observation;
    (E) direction of travel relative to the detonation site; and
    (F) duration of the observation.
    (v) An aerial survey team will conduct pre- and post-aerial 
surveys, taking local oceanographic currents into account, of the 
exercise area.
    (2) Passive acoustic monitoring
    (i) When practicable, towed hydrophone array should be used 
whenever shipboard surveys are being conducted. The towed array would 
be deployed during daylight hours for each of the days the ship is at 
sea.
    (ii) A towed hydrophone array is towed from the boat and can detect 
and localize marine mammals that vocalize and would be used to 
supplement the ship-based systematic line-transect surveys 
(particularly for species such as beaked whales that are rarely seen).
    (iii) The array would need to detect low frequency vocalizations 
(<1,000 Hz) for baleen whales and relatively high frequency 
vocalizations (up to 30 kHz) for odontocetes such as sperm whales. The 
use of two simultaneously deployed arrays can also allow more accurate 
localization and determination of diving patterns.
    (3) Marine mammal observers on Navy platforms
    (i) Marine mammal observers (MMOs) will be placed on a Navy 
platform during one of the exercises being monitored per year.
    (ii) Qualifications must include expertise in species 
identification of regional marine mammal species and experience 
collecting behavioral data. Experience as a NMFS marine mammal observer 
is preferred, but not required. Navy biologists and contracted 
biologists will be used; contracted MMOs must have appropriate security 
clearance to board Navy platforms.
    (iii) MMOs will not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation will take into account safety, 
logistics, and operational concerns.
    (iv) MMOs will observe from the same height above water as the 
lookouts.
    (v) The MMOs will not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts will 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO will inform the lookout of the 
sighting for the lookout to take the appropriate action through the 
chain of command.
    (vi) The MMOs will collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings will be conducted according to a standard 
operating procedure.
    Report from Monitoring required in paragraph (d) above - The Navy 
will submit a report annually on September 1 describing the 
implementation and results (through June 1 of the same year) of the 
monitoring required. Standard marine species sighting forms would be 
provided by the Navy and data collection methods will be standardized 
across ranges to allow for comparison in different geographic 
locations.
    VACAPES Range Complex Comprehensive Report The Navy will submit to 
NMFS a draft report that analyzes and summarizes all of the multi-year 
marine mammal information gathered during explosive exercises. This 
report will be submitted at the end of the fourth year of the rule 
(November 2012), covering activities that have occurred through June 1, 
2012.
    The Navy will respond to NMFS comments on the draft comprehensive 
report if submitted within 3 months of receipt. The report will be 
considered final after the Navy has addressed NMFS' comments, or three 
months after the submittal of the draft if NMFS does not comment by 
then.
    To implement the aforementioned mitigation measures, the Navy is 
developing an Integrated Comprehensive Monitoring Program (ICMP) for 
marine species in order to assess the effects of training activities on 
marine species and investigate population-level trends in marine 
species distribution, abundance, and habitat use in various range 
complexes and geographic locations where Navy training occurs. Although 
the ICMP is intended to apply to all Navy training, use of mid-
frequency active (MFA) sonar in training, testing, and research, 
development, test, and evaluation (RDT&E) will comprise a major 
component of the overall program.
    The ICMP will establish the overarching structure and coordination 
that will facilitate the collection and synthesis of monitoring data 
from Navy training and research and development projects. The Program 
will compile data from range-specific monitoring efforts as well as 
research and development (R&D) studies that are fully or partially 
Navy-funded. Monitoring methods across the ranges will include methods 
such as vessel and aerial surveys, tagging, and passive acoustic 
monitoring.
    The Navy will coordinate with the local NMFS Stranding Coordinator 
for any unusual marine mammal behavior and any stranding, beached live/
dead, or floating marine mammals that may occur at any time during or 
within 24 hours after completion of explosives training activities.

Estimated Take of Marine Mammals

    As mentioned previously, for the purposes of MMPA authorizations, 
NMFS' effects assessments have two primary purposes (in the context of 
the VACAPES Range Complex Final Rule and subsequent LOA, if 
appropriate): (1) to describe the permissible methods of taking within 
the context of MMPA Level B Harassment (behavioral harassment), Level A 
Harassment (injury), and mortality (i.e., identify the number and types 
of take that will occur); and (2) to determine whether the specified 
activity will have a negligible impact on the affected species or 
stocks of marine mammals (based on the likelihood that the activity 
will adversely affect the species or stock through effects on annual 
rates of recruitment or survival). No subsistence uses will be affected 
by the proposed action because no subsistence communities are present 
within the action area.
    In the Assessment of Marine Mammal Response to Anthropogenic Sound 
section, NMFS' analysis identified the lethal responses, physical 
trauma, sensory impairment (permanent and temporary threshold shifts 
and acoustic masking), physiological responses (particular stress 
responses), and behavioral responses that could

[[Page 75651]]

potentially result from exposures from explosive ordnance. In this 
section, we will relate the potential effects to marine mammals from 
underwater detonation of explosives to the MMPA regulatory definitions 
of Level A and Level B Harassment and attempt to quantify the effects 
that might occur from the specific training activities that the Navy is 
proposing in the VACAPES Range Complex.

Definition of Harassment

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (i) 
any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].
Level B Harassment
    Of the potential effects that were described in the Assessment of 
Marine Mammal Response to Anthropogenic Sound and the Explosive 
Ordnance Exposure Analysis sections, following are the types of effects 
that fall into the Level B Harassment category:
    Behavioral Harassment - Behavioral disturbance that rises to the 
level described in the definition above, when resulting from exposures 
to underwater detonations, is considered Level B Harassment. Some of 
the lower level physiological stress responses discussed in the 
Assessment of Marine Mammal Response to Anthropogenic Sound section 
will also likely co-occur with the predicted harassments, although 
these responses are more difficult to detect and fewer data exist 
relating these responses to specific received levels of sound. When 
Level B Harassment is predicted based on estimated behavioral 
responses, those takes may have a stress-related physiological 
component as well.
    Acoustic Masking and Communication Impairment - Acoustic masking is 
considered Level B Harassment as it can disrupt natural behavioral 
patterns by interrupting or limiting the marine mammal's receipt or 
transmittal of important information or environmental cues.
    TTS As discussed previously, TTS can effect how an animal behaves 
in response to the environment, including conspecifics, predators, and 
prey. The following physiological mechanisms are thought to play a role 
in inducing auditory fatigue: effects to sensory hair cells in the 
inner ear that reduce their sensitivity, modification of the chemical 
environment within the sensory cells, residual muscular activity in the 
middle ear, displacement of certain inner ear membranes, increased 
blood flow, and post-stimulatory reduction in both efferent and sensory 
neural output. Ward (1997) suggested that when these effects result in 
TTS rather than PTS, they are within the normal bounds of physiological 
variability and tolerance and do not represent a physical injury. 
Additionally, Southall et al. (2007) indicate that although PTS is a 
tissue injury, TTS is not because the reduced hearing sensitivity 
following exposure to intense sound results primarily from fatigue, not 
loss, of cochlear hair cells and supporting structures and is 
reversible. Accordingly, NMFS classifies TTS (when resulting from 
exposure to underwater detonations) as Level B Harassment, not Level A 
Harassment (injury).
Level A Harassment
    Of the potential effects that were described in the Assessment of 
Marine Mammal Response to Anthropogenic Sound section, following are 
the types of effects that fall into the Level A Harassment category:
    PTS - PTS (resulting either from exposure to explosive detonations) 
is irreversible and considered to be an injury. PTS results from 
exposure to intense sounds that cause a permanent loss of inner or 
outer cochlear hair cells or exceed the elastic limits of certain 
tissues and membranes in the middle and inner ears and result in 
changes in the chemical composition of the inner ear fluids.
    Physical Disruption of Tissues Resulting from Explosive Shock Wave 
- Physical damage of tissues resulting from a shock wave (from an 
explosive detonation) is classified as an injury. Blast effects are 
greatest at the gas-liquid interface (Landsberg, 2000) and gas-
containing organs, particularly the lungs and gastrointestinal tract, 
are especially susceptible to damage (Goertner, 1982; Hill 1978; 
Yelverton et al., 1973). Nasal sacs, larynx, pharynx, trachea, and 
lungs may be damaged by compression/expansion caused by the 
oscillations of the blast gas bubble (Reidenberg and Laitman, 2003). 
Severe damage (from the shock wave) to the ears can include tympanic 
membrane rupture, fracture of the ossicles, damage to the cochlea, 
hemorrhage, and cerebrospinal fluid leakage into the middle ear.

Acoustic Take Criteria

    For the purposes of an MMPA incidental take authorization, three 
types of take are identified: Level B Harassment; Level A Harassment; 
and mortality (or serious injury leading to mortality). The categories 
of marine mammal responses (physiological and behavioral) that fall 
into the two harassment categories were described in the previous 
section.
    Because the physiological and behavioral responses of the majority 
of the marine mammals exposed to underwater detonations cannot be 
detected or measured (not all responses visible external to animal, 
portion of exposed animals underwater (so not visible), many animals 
located many miles form observers and covering very large area, etc.) 
and because NMFS must authorize take prior to the impacts to marine 
mammals, a method is needed to estimate the number of individuals that 
will be taken, pursuant to the MMPA, based on the proposed action. To 
this end, NMFS developed acoustic criteria that estimate at what 
received level (when exposed to explosive detonations) Level B 
Harassment, Level A Harassment, and mortality (for explosives) of 
marine mammals would occur. The acoustic criteria for Underwater 
Detonations are discussed below.

Thresholds and Criteria for Impulsive Sound

    Criteria and thresholds for estimating the exposures from a single 
explosive activity on marine mammals were established for the Seawolf 
Submarine Shock Test Final Environmental Impact Statement (FEIS) 
(``Seawolf'') and subsequently used in the USS Winston S. Churchill 
(DDG-81) Ship Shock FEIS (``Churchill'') (DoN, 1998 and 2001a). NMFS 
adopted these criteria and thresholds in its final rule on 
unintentional taking of marine animals occurring incidental to the 
shock testing (NMFS, 2001a). Since the ship-shock events involve only 
one large explosive at a time, additional assumptions were made to 
extend the approach to cover multiple explosions for FIREX (with 
IMPASS) and BOMBEX. In addition, this section reflects a revised 
acoustic criterion for small underwater explosions (i.e., 23 pounds per 
square inch [psi] instead of previous acoustic criteria of 12 psi for 
peak pressure over all exposures), which is based on the final rule 
issued to the Air Force by NMFS (NMFS, 2005c).

[[Page 75652]]

I.1. Thresholds and Criteria for Injurious Physiological Impacts

I.1.a. Single Explosion

    For injury, the Navy uses dual criteria: eardrum rupture (i.e., 
tympanic-membrane injury. These criteria are considered indicative of 
the onset of injury. The threshold for TM rupture corresponds to a 50 
percent rate of rupture (i.e., 50 percent of animals exposed to the 
level are expected to suffer TM rupture); this is stated in terms of an 
Energy Flux Density Level (EL) value of 1.17 inch pounds per square 
inch (in-lb/in2) (about 205 dB re 1 microPa\2\-sec). This recognizes 
that TM rupture is not necessarily a serious or life-threatening 
injury, but is a useful index of possible injury that is well 
correlated with measures of permanent hearing impairment (Ketten [1998] 
indicates a 30 percent incidence of PTS at the same threshold).
    The threshold for onset of slight lung injury is calculated for a 
small animal (a dolphin calf weighing 26.9 lbs), and is given in terms 
of the ``Goertner modified positive impulse,'' indexed to 13 psi-msec 
(DoN, 2001). This threshold is conservative since the positive impulse 
needed to cause injury is proportional to animal mass, and therefore, 
larger animals require a higher impulse to cause the onset of injury. 
This analysis assumed the marine species populations were 100 percent 
small animals. The criterion with the largest potential impact range 
(most conservative), either TM rupture (energy threshold) or onset of 
slight lung injury (peak pressure), will be used in the analysis to 
determine Level A exposures.
    For mortality, the Navy uses the criterion corresponding to the 
onset of extensive lung injury. This is conservative in that it 
corresponds to a 1 percent chance of mortal injury, and yet any animal 
experiencing onset severe lung injury is counted as a lethal exposure. 
For small animals, the threshold is given in terms of the Goertner 
modified positive impulse, indexed to 30.5 psi-msec. Since the Goertner 
approach depends on propagation, source/animal depths, and animal mass 
in a complex way, the actual impulse value corresponding to the 30.5 
psi-msec index is a complicated calculation. To be conservative, the 
analysis used the mass of a calf dolphin (at 26.9 lbs) for 100 percent 
of the populations.

I.1.b. Multiple Explosions

    For this analysis, the use of multiple explosions only applies to 
FIREX (with IMPASS) and the MK-83 bombs used in BOMBEX. Since FIREX and 
portions of BOMBEX require multiple explosions, the Churchill approach 
had to be extended to cover multiple sound events at the same training 
site. For multiple exposures, accumulated energy over the entire 
training time is the natural extension for energy thresholds since 
energy accumulates with each subsequent shot (detonation); this is 
consistent with the treatment of multiple arrivals in Churchill. For 
positive impulse, it is consistent with Churchill to use the maximum 
value over all impulses received.
I.2. Thresholds and Criteria for Non-Injurious Physiological Effects
    The Navy criterion for non-injurious harassment is TTS a slight, 
recoverable loss of hearing sensitivity (DoN, 2001). For this 
assessment, there are dual criteria for TTS, an energy threshold and a 
peak pressure threshold. The criterion with the largest potential 
impact range (most conservative) either the energy or peak pressure 
threshold, will be used in the analysis to determine Level B TTS 
exposures.

I.2.a. Single Explosion TTS-Energy Threshold

    The first threshold is a 182 dB re 1 microPa\2\-sec maximum energy 
flux density level in any 1/3-octave band at frequencies above 100 
Hertz (Hz) for toothed whales and in any 1/3-octave band above 10 Hz 
for baleen whales. For large explosives, as in the case of the 
Churchill FEIS, frequency range cutoffs at 10 and 100 Hz make a 
difference in the range estimates. For small explosives (<1,500 lb 
NEW), as what was modeled for this analysis, the spectrum of the shot 
arrival is broad, and there is essentially no difference in impact 
ranges for toothed whales or baleen whales.
    The TTS energy threshold for explosives is derived from the Space 
and Naval Warfare Systems Center (SSC) pure-tone tests for TTS 
(Schlundt et al., 2000, Finneran and Schlundt 2004). The pure-tone 
threshold (192 dB as the lowest value) is modified for explosives by 
(a) interpreting it as an energy metric, (b) reducing it by 10 dB to 
account for the time constant of the mammal ear, and (c) measuring the 
energy in 1/3-octave bands, the natural filter band of the ear. The 
resulting threshold is 182 dB re 1 microPa\2\-sec in any 1/3-octave 
band. The energy threshold usually dominates and is used in the 
analysis to determine potential Level B TTS exposures for single 
explosion ordnance.

I.2.b. Single Explosion - TTS-Peak Pressure Threshold

    The second threshold applies to all species and is stated in terms 
of peak pressure at 23 psi (about 225 dB re 1 microPa). This criterion 
was adopted for Precision Strike Weapons (PSW) Testing and Training by 
Eglin Air Force Base in the Gulf of Mexico (NMFS, 2005b). It is 
important to note that for small shots near the surface (such as in 
this analysis), the 23-psi peak pressure threshold generally will 
produce longer impact ranges than the 182-dB energy metric. 
Furthermore, it is not unusual for the TTS impact range for the 23-psi 
pressure metric to actually exceed the behavioral (without TTS) impact 
range for the 177-dB energy metric.
    I.2.c. Multiple Explosions - TTS
    For multiple explosions, accumulated energy over the entire 
training time is the natural extension for energy thresholds since 
energy accumulates with each subsequent shot/detonation. This is 
consistent with the energy argument in Churchill. For peak pressure, it 
is consistent with Churchill to use the maximum value over all impulses 
received.
I.3. Thresholds and Criteria for Behavioral Effects

I.3.a. Single Explosion

    For a single explosion, to be consistent with Churchill, TTS is the 
criterion for Level B. In other words, because behavioral disturbance 
for a single explosion is likely to be limited to a short-lived startle 
reaction, use of the TTS criterion is considered sufficient protection 
and therefore behavioral effects (without TTS, impacts would be limited 
to behavioral effects only) are not considered for single explosions.

I.3.b. Multiple Explosions - Without TTS

    For this analysis, the use of multiple explosions only applies to 
FIREX (with IMPASS) and the MK-83 bombs used in BOMBEX. Because 
multiple explosions would occur within a discrete time period, a new 
acoustic criterion-behavioral disturbance (without TTS) is used to 
account for behavioral effects significant enough to be judged as 
harassment, but occurring at lower noise levels than those that may 
cause TTS.
    The threshold is based on test results published in Schlundt et al. 
(2000), with derivation following the approach of the Churchill FEIS 
for the energy-based TTS threshold. The original Schlundt et al. (2000) 
data and the report of Finneran and Schlundt (2004) are the basis for 
thresholds for behavioral disturbance

[[Page 75653]]

(without TTS). As reported by Schlundt et al. (2000), instances of 
altered behavior generally began at lower exposures than those causing 
TTS; however, there were many instances when subjects exhibited no 
altered behavior at levels above the onset-TTS levels. Regardless of 
reactions at higher or lower levels, all instances of altered behavior 
were included in the statistical summary.
    The behavioral disturbance (without TTS) threshold for tones is 
derived from the SSC tests, and is found to be 5 dB below the threshold 
for TTS, or 177 dB re 1 microPa\2\-sec maximum energy flux density 
level in any 1/3-octave band at frequencies above 100 Hz for toothed 
whales and in any 1/3-octave band above 100 Hz for baleen whales. As 
stated previously for TTS, for small explosives (<1,500 lb NEW), as 
what was modeled for this analysis, the spectrum of the shot arrival is 
broad, and there is essentially no difference in impact ranges for 
whales. The behavioral disturbance (without TTS) impact range for FIREX 
with IMPASS can, especially in shallower water, be about twice the 
impact range for TTS. Based on modeling, for BOMBEX involving MK-83 
bombs, behavioral disturbance (without TTS) (177 dB re 1 microPa\2\-s) 
is the criteria that dominates in the analysis to determine potential 
Level B exposures due to the use of multiple explosions.
II. Summary of Thresholds and Criteria for Impulsive Sounds
    Table 15 summarizes the effects, criteria, and thresholds used in 
the assessment for impulsive sounds. The criteria for behavioral 
effects without physiological effects used in this analysis are based 
on use of multiple explosives that only take place during a FIREX (w/
IMPASS) event or a BOMBEX event involving MK-83 bombs.

                                            Table 15. Effects, Criteria, and Thresholds for Impulsive Sounds
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Effect                          Criteria                       Metric                      Threshold                      Effect
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mortality                           Onset of Extensive Lung       Goertner modified positive    indexed to 30.5 psi-msec     Mortality
                                     Injury                        impulse                       (assumes 100 percent small
                                                                                                 animal at 26.9 lbs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Injurious                           50% Tympanic Membrane         Energy flux density           1.17 in-lb/in\2\ (about 205  Level A
Physiological                        Rupture                                                     dB re 1 microPa\2\-sec)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Injurious                           Onset Slight Lung Injury      Goertner modified positive    indexed to 13 psi-msec       Level A
Physiological                                                      impulse                       (assumes 100 percent small
                                                                                                 animal at 26.9 lbs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-injurious                       TTS                           Greatest energy flux density  182 dB re 1 microPa\2\-sec   Level B
Physiological                                                      level in any 1/3-octave
                                                                   band (> 100 Hz for toothed
                                                                   whales and > 10 Hz for
                                                                   baleen whales) - for total
                                                                   energy over all exposures
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-injurious                       TTS                           Peak pressure over all        23 psi (for small            Level B
Physiological                                                      exposures                     explosives <2,000 lbs,
                                                                                                 else 12 psi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-injurious                       Multiple Explosions Without   Greatest energy flux density  177 dB re 1 microPa\2\-sec   Level B
Behavioral                           TTS                           level in any 1/3-octave (>
                                                                   100 Hz for toothed whales
                                                                   and > 10 Hz for baleen
                                                                   whales) - for total energy
                                                                   over all exposures
                                                                   (multiple explosions only)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The criteria for mortality, Level A Harassment, and Level B 
Harassment resulting from explosive detonations were initially 
developed for the Navy's Sea Wolf and Churchill ship-shock trials and 
have not changed since other MMPA authorizations issued for explosive 
detonations. The criteria, which are applied to cetaceans and pinnipeds 
are summarized in Table 8. Additional information regarding the 
derivation of these criteria is available in the Navy's EIS for the 
VACAPES Range Complex and in the Navy's CHURCHILL FEIS (U.S. Department 
of the Navy, 2001c).

Take Calculations

    In estimating the potential for marine mammals to be exposed to an 
acoustic source, the Navy completed the following actions:
    (1) Evaluated potential effects within the context of existing and 
current regulations, thresholds, and criteria;
    (2) Identified all acoustic sources that will be used during Navy 
training activities;
    (3) Identified the location, season, and duration of the action to 
determine which marine mammal species are likely to be present;
    (4) Determined the estimated number of marine mammals (i.e., 
density) of each species that will likely be present in the respective 
OPAREAs during the Navy training activities;
    (5) Applied the applicable acoustic threshold criteria to the 
predicted sound exposures from the proposed activity. The results were 
then evaluated to determined whether the predicted sound exposures from 
the acoustic model might be considered harassment; and
    (6) Considered potential harassment within the context of the 
affected marine mammal population, stock, and species to assess 
potential population viability. Particular focus on recruitment and 
survival are provided to analyze whether the effects of the action

[[Page 75654]]

can be considered to have negligible effects to marine mammal species 
or a population stock.
    Starting with a sound source, the attenuation of an emitted sound 
due to propagation loss is determined. Uniform animal distribution is 
overlaid onto the calculated sound fields to assess if animals are 
physically present at sufficient received sound levels to be considered 
``exposed'' to the sound. If the animal is determined to be exposed, 
two possible scenarios must be considered with respect to the animal's 
physiology - effects on the auditory system and effects on non-auditory 
system tissues. These are not independent pathways and both must be 
considered since the same sound could affect both auditory and non-
auditory tissues. Note that the model does not account for any animal 
response; rather the animals are considered stationary, accumulating 
energy until the threshold is tripped.
    Estimating the take that will result from the proposed activities 
entails the following four steps: propagation model estimates animals 
exposed to sources at different levels; further modeling determines the 
number of exposures to levels indicated in the criteria above (i.e., 
number of takes); post-modeling corrections refine estimates to make 
them more accurate; mitigation is taken into consideration. More 
information regarding the models used, the assumptions used in the 
models, and the process of estimating take is available in Appendix J 
of the Navy's EIS for the VACAPES Range Complex.
    Modeling results from the analysis predict mortalities for 1 common 
dolphin from use of explosive ordnance in MISSILEX activities. These 
modeling results do not take into account the mitigation measures 
(detailed in the Proposed Mitigation Measure section above) that lower 
the potential for mortalities to occur given standard range clearance 
procedures and the likelihood that these species can be readily 
detected (e.g., small animals move quickly throughout the water column 
and are often seen riding the bow wave of large ships or in large 
groups). With the mitigation and monitoring measures implemented, NMFS 
does not believe that there would be mortality of any marine mammal 
resulting from the proposed training activities. Therefore, mortality 
of marine mammals would not be authorized.

Effects on Marine Mammal Habitat

    Activities from Atlantic Fleet training activities in the VACAPES 
Range Complex that may affect marine mammal habitat include changes in 
water quality, the introduction of sound into the water column, and 
temporary changes to prey distribution and abundance. There is no 
critical habitat designated in the VACAPES Range Complex.

Analysis and Negligible Impact Determination

    Pursuant to NMFS regulations implementing the MMPA, an applicant is 
required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes, alone, is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, NMFS must consider other factors, such as the likely nature 
of any responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), or 
any of the other variables mentioned in the first paragraph (if known), 
as well as the number and nature of estimated Level A takes, the number 
of estimated mortalities, and effects on habitat.
    Based on the analysis contained herein, NMFS has preliminarily 
determined that Navy training exercises utilizing underwater 
detonations will have a negligible impact on the marine mammal species 
and stocks present in the VACAPES Range Complex.

Subsistence Harvest of Marine Mammals

    NMFS has preliminarily determined that the issuance of 5-year 
regulations and subsequent LOAs (as warranted) for Navy training 
exercises in the VACAPES Range Complex would not have an unmitigable 
adverse impact on the availability of the affected species or stocks 
for subsistence use, since there are no such uses in the specified 
area.

ESA

    There are four marine mammal species that are listed as endangered 
under the ESA with confirmed or possible occurrence in the VACAPES 
Range Complex: humpback whale, North Atlantic right whale, fin whale, 
and sperm whale. The Navy has begun consultation with NMFS pursuant to 
section 7 of the ESA, and NMFS will also consult internally on the 
issuance of an LOA under section 101(a)(5)(A) of the MMPA for training 
exercises in the VACAPES Range Complex. Consultation will be concluded 
prior to a determination on the issuance of the final rule and an LOA.

NEPA

    The Navy is preparing an Environmental Impact Statement (EIS) for 
the proposed VACAPES Range Complex training activities. A draft EIS was 
released for public comment from June 27 - August 11, 2008 and it is 
available at http://www.vacapesrangecomplexeis.com/. NMFS is a 
cooperating agency (as defined by the Council on Environmental Quality 
(40 CFR 1501.6)) in the preparation of the EIS. NMFS has reviewed the 
Draft EIS and will be working with the Navy on the Final EIS (FEIS).
    NMFS intends to adopt the Navy's FEIS, if adequate and appropriate, 
and we believe that the Navy's FEIS will allow NMFS to meet its 
responsibilities under NEPA for the issuance of the 5-year regulations 
and LOAs (as warranted) for training activities in the VACAPES Range 
Complex. If the Navy's FEIS is not adequate, NMFS would supplement the 
existing analysis and documents to ensure that we comply with NEPA 
prior to the issuance of the final rule or LOA.

Preliminary Determination

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and dependent 
upon the implementation of the mitigation measures, NMFS preliminarily 
finds that the total taking from Navy training exercises utilizing 
underwater explosives in the VACAPES Range Complex will have a 
negligible impact on the affected marine mammal species or stocks. NMFS 
has proposed regulations for these exercises that prescribe the means 
of affecting the least practicable adverse impact on marine mammals and 
their habitat and set forth requirements pertaining to the monitoring 
and reporting of that taking.

[[Page 75655]]

Classification

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act
    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this proposed rule is not significant.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities. The Regulatory Flexibility 
Act requires Federal agencies to prepare an analysis of a rule's impact 
on small entities whenever the agency is required to publish a notice 
of proposed rulemaking. However, a Federal agency may certify, pursuant 
to 5 U.S.C. section 605 (b), that the action will not have a 
significant economic impact on a substantial number of small entities. 
The Navy is the entity that will be affected by this rulemaking, not a 
small governmental jurisdiction, small organization or small business, 
as defined by the Regulatory Flexibility Act. Any requirements imposed 
by a Letter of Authorization issued pursuant to these regulations, and 
any monitoring or reporting requirements imposed by these regulations, 
will be applicable only to the Navy. Because this action, if adopted, 
would directly affect the Navy and not a small entity, NMFS concludes 
the action would not result in a significant economic impact on a 
substantial number of small entities.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine 
mammals, Navy, Penalties, Reporting and recordkeeping requirements, 
Seafood, Sonar, Transportation.

    Dated: December 5, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR Chapter II is 
proposed to be amended by adding part 218 to read as follows:
    2. Part 218 is added to read as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

Subpart A--Taking Marine Mammals Incidental to U.S. Navy Training in 
the Virginia Capes Range Complex
Sec.
218.1 Specified activity and specified geographical region.
218.2 Permissible methods of taking.
218.3 Prohibitions.
218.4 Mitigation.
218.5 Requirements for monitoring and reporting.
218.6 Applications for Letters of Authorization.
218.7 Letters of Authorization.
218.8 Renewal of Letters of Authorization.
218.9 Modifications to Letters of Authorization.

Subpart A--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Virginia Capes Range Complex (VACAPES Range Complex)

    Authority: 16 U.S.C. 1361 et seq.


Sec.  218.1  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 occur incidental to the activities 
described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the VACAPES OPAREA, which is located in the coastal 
and offshore waters of the western North Atlantic Ocean adjacent to 
Delaware, Maryland, Virginia, and North Carolina. The northernmost 
boundary of the OPAREA is located 37 nautical miles (nm) off the 
entrance to Delaware Bay at latitude 38[deg] 45' N, the farthest point 
of the eastern boundary is 184 nm east of Chesapeake Bay at longitude 
72[deg] 41' W, and the southernmost point is 105 nm southeast of Cape 
Hatteras, North Carolina, at latitude of 34[deg] 19' N. The western 
boundary of the OPAREA lies 3 nm from the shoreline at the boundary 
separating state and Federal waters.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The detonation of the underwater explosives indicated in this 
(c)(1)(i) conducted as part of the training exercises indicated in this 
(c)(1)(ii):
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) AGM-65 E/F (Maverick missile);
    (C) MK-83/GBU-32 (1,000 lb High Explosive bomb);
    (D) Airgorne Mine Neutralization system (AMNS);
    (E) 20 lb NEW charges;
    (F) AGM-88 (HARM);
    (G) 5'' Naval Gunfire.
    (ii) Training Events:
    (A) Mine Neutralization (AMNS) up to 150 exercises over the course 
of 5 years (an average of 30 per year);
    (B) Mine Neutralization (20 lb NEW charges) - up to 120 exercises 
over the course of 5 years (an average of 24 per year);
    (C) Bombing Exercise (BOMBEX) (Air-to-Surface) - up to 100 
exercises over the course of 5 years (an average of 20 per year);
    (D) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile) 
- up to 300 exercises over the course of 5 years (an average of 60 per 
year);
    (E) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick, HE) - up 
to 100 exercises over the course of 5 years (an average of 20 per 
year);
    (F) HARM Missile Exercise (HARMEX) - up to 130 exercises over the 
course of 5 years (an average of 26 per year);
    (G) FIREX with IMPASS - up to 110 exercises over the course of 5 
years (an average of 22 per year).
    (2) [Reserved]


Sec.  218.2  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.7, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.1 (b), provided the activity is in 
compliance with all terms, conditions, and requirements of this subpart 
and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  218.1 (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.  218.1 (c) is limited to the following species, by 
the indicated method of take the indicated number of times:
    (1) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae) - 2;
    (B) Fin whale (Balaenoptera physalus) - 2.
    (ii) Odontocetes:
    (A) Sperm whale (Physeter macrocephalus) - 2;
    (B) Pygmy or dwarf sperm whales (Kogia sp.) - 3;
    (C) Rough-toothed dolphin (Steno bredanensis) - 1;
    (D) Bottlenose dolphin (Tursiops truncatus) - 29;

[[Page 75656]]

    (E) Pantropical spotted dolphin (Stenella attenuata) - 70;
    (F) Striped dolphin (S. coeruleoalba)- 68;
    (F) Clymene dolphin (S. clymene) - 33;
    (G) Atlantic spotted dolphin (S. frontalis) - 43;
    (H) Common dolphin (Delphinus delphis) - 2,193;
    (I) Risso's dolphin (Grampus griseus) - 16
    (J) Pilot whales (Globicephala sp.) - 10.
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin - 1;
    (ii) Common dolphin - 20;
    (iii) Pantropical spotted dolphin - 1;
    (iv) Striped dolphin - 3.


Sec.  218.3  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.2 and authorized 
by a Letter of Authorization issued under Sec.  216.106 of this chapter 
and Sec.  218.7. No person in connection with the activities described 
in Sec.  218.1 may:
    (a) Take any marine mammal not specified in Sec.  218.2 (c);
    (b) Take any marine mammal specified in Sec.  218.2 (c) other than 
by incidental take as specified in Sec.  218.2(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  218.2 (c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter and Sec.  218.7.


Sec.  218.4  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.1(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7 must be implemented. These mitigation measures include (but are 
not limited to):
    (1) General Maritime Measures:
    (i) Personnel Training - Lookouts
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews will complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts will undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training will include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts will 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts will be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts would scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout would always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout would hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout would scan for approximately five 
seconds in as many small steps as possible across the field seen 
through the binoculars. They would search the entire sector in 
approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses would be lowered to allow the eyes to rest 
for a few seconds, and then the lookout would search back across the 
sector with the naked eye.
    (F) At night, lookouts would not sweep the horizon with their eyes, 
because eyes do not see well when they are moving. Lookouts would scan 
the horizon in a series of movements that would allow their eyes to 
come to periodic rests as they scan the sector. When visually searching 
at night, they would look a little to one side and out of the corners 
of their eyes, paying attention to the things on the outer edges of 
their field of vision. Lookouts will also have night vision devices 
available for use.
    (ii) Operating Procedures & Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order will 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers will make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels will have at least two lookouts 
with binoculars; surfaced submarines will have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals and sea turtles.
    (D) On surface vessels equipped with a mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars will be properly 
installed and in good working order to assist in the detection of 
marine mammals and sea turtles in the vicinity of the vessel.
    (E) Personnel on lookout will employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts will employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels will be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When whales have been sighted in the area, Navy vessels will 
increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (I) Naval vessels will maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted 
in their ability to maneuver. Restricted maneuverability includes, but 
is not limited to, situations when vessels are engaged in dredging, 
submerged operations, launching and recovering aircraft or landing 
craft, minesweeping operations, replenishment while underway and towing 
operations that severely restrict a vessel's ability to deviate course. 
Vessels will take reasonable steps to alert other vessels in the 
vicinity of the whale.

[[Page 75657]]

    (J) Where feasible and consistent with mission and safety, vessels 
will avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (K) Floating weeds, algal mats, Sargassum rafts, clusters of 
seabirds, and jellyfish are good indicators of sea turtles and marine 
mammals. Therefore, increased vigilance in watching for sea turtles and 
marine mammals will be taken where these are present.
    (L) Navy aircraft participating in exercises at sea will conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections will be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    (M) All vessels will maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any 
time during or within 24 hours after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration:
    (i) The mitigation measures apply to all Navy vessel transits, 
including those vessels that would transit to and from East Coast ports 
and OPAREAs.
    (ii) Seasonal migration of right whales is described by NMFS as 
occurring from October 15th through April 30th, when right whales 
migrate between feeding grounds farther north and calving grounds 
farther south.
    (A) Where vessel transits during the right whale migration season 
along certain identified ports including the Hampton Roads entrance to 
the Chesapeake Bay, Navy vessels shall use extreme caution and operate 
at a slow, safe speed consistent with mission and safety within a 20 nm 
(37 km) arc of the specified reference points listed on Table 14 of 
this document.
    (B) During the indicated months, Navy vessels would practice 
increased vigilance with respect to avoidance of vessel-whale 
interactions along the mid-Atlantic coast, including transits to and 
from any mid-Atlantic ports not specifically identified above.
    (4) Proposed Mitigation Measures for Specific At-sea Training 
Events:
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in. Explosive Rounds);
    (A) FIREX using IMPASS would only be conducted in the four 
designated areas in the VACAPES Range Complex.
    (B) Pre-exercise monitoring of the target area will be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position.
    Ships will maintain a lookout dedicated to visually searching for 
marine mammals 180o along the ship track line and 360o at each buoy 
drop-off location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 640 yd (585 
m) buffer zone around the target area for marine mammals during naval-
gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 640 yd (585 m) until the area is 
cleared. If marine mammals are present, operations shall be suspended. 
Visual observation shall occur for approximately 45 minutes, or until 
the animal has been observed to have cleared the area and is heading 
away from the buffer zone.
    (E) Post-exercise monitoring of the entire effect range shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) FIREX with IMPASS shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State 
three (3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs);
    (A) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area will be made by flying at 1,500 ft (457 m) altitude or 
lower, if safe to do so, and at the slowest safe speed.
    (B) A buffer zone of 5,100-yd (4,663 m) radius shall be established 
around the intended target zone. The exercises shall be conducted only 
if the buffer zone is clear of sighted marine mammals.
    (C) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (iii) Air-to-Surface Missile Exercises (Explosive);
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of range transients.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iv) Mine Neutralization Training Involving Underwater Detonations 
(up to 20-lb charges);
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 656 yd 
(600 m) radius from detonation location, for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear for a full 30 minutes 
prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear for 30 minutes 
prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet (Chesapeake Bay Inlets).
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) No detonations shall take place within 1,000 ft (305 m) of any 
artificial reef, shipwreck, or live hard-bottom community.

[[Page 75658]]

    (I) Personnel shall record any protected species observations 
during the exercise as well as measures taken if species are detected 
within the ZOI.
    (v) Adaptive management;
    (A) The final regulations governing the take of marine mammals 
incidental to Navy training exercises in VACAPES shall contain an 
adaptive management component.
    (B) The use of adaptive management shall give NMFS the ability to 
consider new data from different sources to determine (in coordination 
with the Navy), on an annual basis, if new or modified mitigation or 
monitoring measures are appropriate for subsequent annual LOAs.


Sec.  218.5  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter and Sec.  218.7 for activities described 
in Sec.  218.1(c) is required to cooperate with the NMFS, and any other 
Federal, state or local agency monitoring the impacts of the activity 
on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately 
(or as soon as clearance procedures allow) if the specified activity 
identified in Sec.  218.1(c) is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified in Sec.  218.2 (c).
    (c) The Holder of the Letter of Authorization must conduct all 
monitoring and/or research required under the Letter of 
Authorization.(d) The monitoring methods proposed for use during 
training events in VACAPES Range Complex include a combination of 
individual elements designed to allow a comprehensive assessment 
include:
    (1) Vessel and aerial surveys:
    (i) The Holder of this Authorization shall visually survey a 
minimum of 2 explosive events per year, one of which shall be a 
multiple detonation event.
    (ii) For specified training events, aerial or vessel surveys shall 
be used 1-2 days prior to, during (if reasonably safe), and 1-5 days 
post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2000 yards beyond the exclusion zone. 
For vessel based surveys a passive acoustic system (hydrophone or towed 
array) could be used to determine if marine mammals are in the area 
before and/or after a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Species identification and group size;
    (B) Location and relative distance from the detonation site;
    (C) The behavior of marine mammal(s) including standard 
environmental and oceanographic parameters;
    (D) Date, time and visual conditions associated with each 
observation;
    (E) Direction of travel relative to the detonation site; and
    (F) duration of the observation.
    (v) An aerial survey team shall conduct pre and post aerial 
surveys, taking local oceanographic currents into account, of the 
exercise area.
    (2) Passive acoustic monitoring:
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (3) Marine mammal observers on Navy platforms:
    (i) Marine mammal observers (MMOs) shall be placed on a Navy 
platform during one of the exercises being monitored per year.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting for the lookout to take the appropriate action through the 
chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings shall be conducted according to a standard 
operating procedure.
    (e) Report from Monitoring required in paragraph d of this section 
The Navy shall submit a report annually on September 1 describing the 
implementation and results (through June 1 of the same year) of the 
monitoring required in paragraph c of this section.
    (f) VACAPES Range Complex Comprehensive Report The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during explosive 
exercises for which individual reports are required in Sec.  218.5 (d 
through e). This report will be submitted at the end of the fourth year 
of the rule (November 2012), covering activities that have occurred 
through June 1, 2012.
    (g) The Navy shall respond to NMFS comments on the draft 
comprehensive report if submitted within 3 months of receipt. The 
report will be considered final after the Navy has addressed NMFS' 
comments, or three months after the submittal of the draft if NMFS does 
not comment by then.


Sec.  218.6  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  218.1(c) (the U.S. Navy) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec.  
218.7 or a renewal under Sec.  218.8.


Sec.  218.7  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  218.8.
    (b) Each Letter of Authorization 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 Letter of Authorization will be based on a 
determination that the total number of marine mammals taken by the 
activity as a whole will have no more than a negligible impact on the 
affected species or stock of marine mammal(s).


Sec.  218.8  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.7 for the activity identified in

[[Page 75659]]

Sec.  218.1(c) will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.6 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
218.5(b); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.4 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.  216.106 of this chapter and Sec.  218.8 indicates that a 
substantial modification 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 Letters of Authorization 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 Letter of 
Authorization.(c) A notice of issuance or denial of a renewal of a 
Letter of Authorization will be published in the Federal Register.


Sec.  218.9  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.  216.106 of 
this chapter and Sec.  218.7 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  218.8, 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.  218.2(c), a Letter of 
Authorization issued pursuant to Sec.  216.106 of this chapter and 
Sec.  218.7 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. E8-29498 Filed 12-11-08; 8:45 am]
BILLING CODE 3510-22-S