[Federal Register Volume 73, Number 243 (Wednesday, December 17, 2008)]
[Proposed Rules]
[Pages 76578-76605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29761]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW79


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Jacksonville 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 Jacksonville (JAX) Range Complex for the 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 
16, 2009.

ADDRESSES: You may submit comments, identified by 0648-AW79, 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 anonyous). 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 JAX Range Complex 
was published on June 27, 2008, and may be viewed at http://www.JacksonvilleRange ComplexEIS.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 small numbers of marine 
mammals in specified geographic region 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 six species of cetaceans 
incidental to the proposed training activities in the JAX Range Complex 
over the course of 5 years. On November 7, 2008, the Navy submitted an 
Addendum with some modifications to its original requests. 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 JAX 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 2 individual Atlantic spotted dolphins per year 
by injury as a result of the proposed training activities at JAX Range 
Complex. Please refer to Table 9 of the document for detailed 
information of the potential exposures from explosive ordnance (per 
year) for marine mammals in the JAX Range Complex. However, due to the 
proposed mitigation and monitoring measures, NMFS believes that the 
actual take would be less that estimated.

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. Section 5062 of Title 10 of the U.S. 
Code 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

[[Page 76579]]

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 JAX 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 JAX Study Area geographically encompasses offshore, near-shore, 
and onshore OPAREAs, instrumented ranges, and special use airspace 
(SUA) located along the southern east coast of the U.S. The two 
principal OPAREAs within the JAX Study Area are the Jacksonville OPAREA 
and the Charleston OPAREA (sometimes referred to collectively as the 
JAX/CHASN OPAREA, or simply the OPAREA). The boundary that separates 
the two OPAREAs from one another is located between 31[deg] and 32[deg] 
N latitude. The JAX/CHASN OPAREA encompasses much of the South Atlantic 
Bight (SAB) (i.e., the marine waters located between Cape Hatteras and 
Cape Canaveral).
    The JAX/CHASN OPAREA encompasses 50,219 nm\2\ (172,246 km\2\) of 
ocean area within the SAB. The western boundary of the JAX/CHASN OPAREA 
is located approximately 3 nm (5.56 km) off the southeast U.S. coast. 
This shoreward boundary ranges from waters southwest of the New River, 
North Carolina to waters just north of the Indian and Banana River 
Complex, Florida.
    The northernmost point of the JAX/CHASN OPAREA is located just 
north of Wilmington, North Carolina (34[deg]37' N) in waters less than 
20 m (65.6 ft) deep, while the easternmost boundary lies 281 nm (518.6 
km) offshore of Jacksonville, Florida (77[deg]00' W) in waters with a 
bottom depth of nearly 2,000 m (6,562 ft). The JAX/CHASN OPAREA is a 
set of operating and maneuver areas with defined air, ocean surface, 
and subsurface areas described in detail in Table 1 of the Navy's LOA 
application.
    A Warning Area is airspace of defined dimensions, extending from 3 
nm (5.56 km) outward from the coast of the U.S., which contains 
activity that may be hazardous to nonparticipating aircraft. The 
purpose of such warning areas 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

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

Surface Warfare

    Surface Warfare (SUW) supports defense of a geographical area 
(e.g., a zone or barrier) or friendly ships underway in cooperation 
with surface, subsurface, and air forces. SUW operations detect, 
localize, and track surface targets, primarily ships. Hostile small 
craft and ships are detected and monitored visually and with electronic 
sensors. Operations include identifying surface contacts, engaging with 
weapons, disengaging, evasion and avoiding attack, including 
implementation of radio silence and deceptive measures.
    For the proposed JAX Range Complex training operations, SUW 
involving the use of explosive ordnance includes air-to-surface Missile 
Exercises that occur at sea.
    Missile Exercise (Air-to-Surface) (MISSILEX (A-S)): This exercise 
would involve fixed winged aircraft and helicopter launching missiles 
at targets on the ocean's surface with the goal of destroying or 
disabling the target. MISSILEX (A-S) training in JAX 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 JAX Range Complex for the proposed action.

                      Table 1. Levels of MISSILEX Planned in the JAX Range Complex Per Year
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           Operation                      Platform               System/Ordnance            Number of Events
----------------------------------------------------------------------------------------------------------------
Missile Exercise (MISSILEX)      MH-60R/S, SH-60B, HH-60H   AGM-114 (Hellfire          70 sorties (70 missiles)
 (Air to Surface)                                            missile)
                                --------------------------------------------------------------------------------
                                 P-3C, and P-8A             AGM-65 (Maverick missile)  3 sorties (3 missiles)
----------------------------------------------------------------------------------------------------------------

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 JAX 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. 
``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. In the JAX Study Area, MIW training/MINEX events include 
the use of explosive charges for one type of mine countermeasures and 
neutralization training: underwater detonations of mine shapes by 
Explosive Ordnance Disposal (EOD) divers. Table 2 below summarizes the 
levels of mine warfare/mine exercises planned in the JAX Range Complex 
for the proposed action.

[[Page 76580]]



            Table 2. Levels of Mine Warfare/Mine Exercises Planned in the JAX Range Complex Per Year
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                                                                                         Number of Events (each
           Operation                      Platform               System/Ordnance        event include 1 charge)
----------------------------------------------------------------------------------------------------------------
Mine Neutralization              EOD                        20 lb charges              12 events
----------------------------------------------------------------------------------------------------------------

    EOD personnel detect, identify, evaluate, and neutralize mines. The 
EOD mission during training is to locate and neutralize mine shapes 
after they are initially located by another source, such as an MCM or 
MHC class ship or an MH-53 or MH-60 helicopter. For underwater 
detonations, EOD divers are deployed from a ship or small boat to 
practice neutralizing a mine shape underwater. The neutralization 
exercise in the water is normally done with an explosive charge of 5-, 
10- or 20-lbs NEW. The initiation of the charge is controlled remotely 
by EOD personnel. If the mine shape were an actual mine, it would 
explode due to the pressure and energy exerted in the water from the 
smaller EOD explosive charge. This training is conducted only during 
day light hours in the JAX Study Area.

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 3 below summarizes the levels of FIREX with IMPASS planned in the 
JAX Range Complex for the proposed action.

                 Table 3. Levels of FIREX with IMPASS Planned in the JAX Range Complex Per Year
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                                                                                         Number of Events (each
           Operation                      Platform               System/Ordnance        event include 1 charge)
----------------------------------------------------------------------------------------------------------------
FIREX with IMPASS                CG, DDG                    5'' gun (IMPASS            10 events
                                                                                       (390 rounds)
----------------------------------------------------------------------------------------------------------------

Vessel Movement

    Vessel movements are associated with most activities under the 
training operations in the JAX Study Area. This involves transiting to 
and from port to the JAX Range Complex as well as vessel movements 
into, within, and through the range complex. 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; 
these types of operations are all analyzed under the impacts from 
vessel movement. The Navy estimates approximately 1,050 steaming days 
in the JAX Range Complex. This also includes non-training related 
vessel movements which are unpredictable as to their occurrence in a 
year such as, but not limited to, storm evasion, deployment transits, 
and movements in the basin to rearrange for repairs/berthing/loading/
off-loading from designated piers. An estimate of steaming days per 
year was computed by summing the number of steaming hours proposed in 
each range complex, dividing by 24 hours per day, and rounding to the 
nearest 10 days.

Small Arms Training Explosive hand grenades (such as the MK3A2 
grenades)

    Small arms training is part of quarterly reservist training for the 
Mobile Expeditionary Security Group (MESG). The MESG trains with MK3A2 
(0.5-lb NEW) anti-swimmer concussion grenades. The MK3A2 grenades are 
small and contain high explosives in an inert metal or plastic shell. 
They detonate at about 3 m (9.8 ft) under the water's surface within 4 
to 5 seconds of being deployed. The detonation depth may be shallower 
depending upon the speed of the boat at the time the grenade is 
deployed. Table 4 below summarizes the levels of small arms training 
planned in the JAX Range Complex for the proposed action.

                                    Table 4. Levels of Small Arms Training Planned in the JAX Range Complex Per Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                Number of Events (each
             Operation                        Platform                   System/Ordnance               Event Duration          event include 1 charge)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Arms Training (explosive      Maritime Expeditionary        MK3A2 anti-swimmer grenades   1-2 hours                    96 events
 hand grenades)                      Support Group (Various        (HE)                                                      (80 grenades)
                                     Small Boats)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    A number of different types of boats would be used depending on the 
unit using the boat and their mission. Boats are mostly used by Naval 
Special Warfare (NSW) teams and Navy Expeditionary Combat Command 
(NECC) units (Naval Coastal Warfare, Inshore Boat Units, Mobile 
Security Detachments, Explosive Ordnance

[[Page 76581]]

Disposal, and Riverine Forces). These units would be used to protect 
ships in harbors and high value units, such as aircraft carriers, 
nuclear submarines, liquid natural gas tankers, etc., while entering 
and leaving ports, as well as to conduct riverine operations, insertion 
and extractions, and various naval special warfare operations.
    The boats used by these units include: Small Unit River Craft 
(SURC), Combat Rubber Raiding Craft (CRRC), Rigid Hull Inflatable Boats 
(RHIB), Patrol Craft, and many other versions of these types of boats. 
These boats would use inboard or outboard, diesel or gasoline engines 
with either propeller or water jet propulsion.
    This exercise is usually a live-fire exercise, but at times blanks 
may be used so boat crews can practice their ship-handling skills for 
the employment of weapons without being concerned with the safety 
requirements involved with HE weapons.
    (1) Basic Phase (Unit Level Training) Scenario:
    Boat crews may use high or low speeds to approach and engage 
targets simulating swimmers with anti-swimmer concussion grenades.
    (2) Integrated and Sustainment Phase Training Scenarios:
    Typically do not differ from the Basic Phase Scenario, except for 
additional command and control coordination involved.
    (3) Training Considerations
    The purpose of this exercise is to develop marksmanship skills and 
small boat ship-handling tactics skills required to employ these 
weapons. Training usually lasts 1-2 hours.

Description of Marine Mammals in the Area of the Specified Activities

    There are 29 marine mammal species with possible or confirmed 
occurrence in the JAX Range Complex. As indicated in Table 5, all of 
them are cetacean species (7 mysticetes and 22 odontocetes). Table 5 
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 JAX Range Complex: the 
humpback whale, North Atlantic right whale, sei whale, fin whale, blue 
whale, and sperm whale.

                          Table 5. Marine Mammal Species Found in the JAX 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
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Megaptera novaeangliae                    Humpback whale                      Endangered
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Balaenoptera acutorostrata                Minke whale                         ..................................
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B. brydei                                 Bryde's whale                       ..................................
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B. borealis                               Sei whale                           Endangered
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B. physalus                               Fin whale                           Endangered
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B. musculus                               Blue whale                          Endangered
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Suborder Odontoceti (toothed whales)
-----------------------------------------
Physeter macrocephalus                    Sperm whale                         Endangered
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Kogia breviceps                           Pygmy sperm whale                   ..................................
----------------------------------------------------------------------------------------------------------------
K. sima                                   Dwarf sperm whale                   ..................................
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Ziphius cavirostris                       Cuvier's beaked whale               ..................................
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Mesoplodon minus                          True's beaked whale                 ..................................
----------------------------------------------------------------------------------------------------------------
M. europaeus                              Gervais' beaked whale               ..................................
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M. densirostris                           Blainville's beaked whale           ..................................
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Steno bredanensis                         Rough-toothed dolphin               ..................................
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Tursiops truncatus                        Bottlenose dolphin                  ..................................
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Stenella attenuata                        Pantropical spotted dolphin         ..................................
----------------------------------------------------------------------------------------------------------------
S. frontalis                              Atlantic spotted dolphin            ..................................
----------------------------------------------------------------------------------------------------------------
S. longirostris                           Spinner dolphin                     ..................................
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S. clymene                                Clymene dolphin                     ..................................
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S. coeruleoalba                           Striped dolphin                     ..................................
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Delphinus delphis                         Common dolphin                      ..................................
----------------------------------------------------------------------------------------------------------------

[[Page 76582]]

 
Lagenodephis hosei                        Fraser's dolphin                    ..................................
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Grampus griseus                           Risso's dolphin                     ..................................
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Peponocephala electra                     Melon-headed whale                  ..................................
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Feresa attenuata                          Pygmy killer whale                  ..................................
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Pseudorca crassidens                      False killer whale                  ..................................
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Orcinus orca                              Killer whale                        ..................................
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G. macrorhynchus                          Short-finned pilot whale            ..................................
----------------------------------------------------------------------------------------------------------------

    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 JAX/CHASN OPAREA was recently updated in 2008 (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 (e.g., 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 MISSILEX, FIREX, 
MINEX, and Small Arms Training (explosive hand grenades) are the 
activities with the potential to result in Level A or Level B 
harassment of marine mammals. Vessel strikes were also analyzed for 
potential affect to marine mammals.

Vessel Strikes

    Ship strikes are known to affect large whales and sirenians in the 
JAX 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 boats operated by engines 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,

[[Page 76583]]

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; followed by right whales, humpback whales, sperm whales, 
and gray whales (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. There were 
also instances in which sperm whales approached vessels too closely and 
were cut by the propellers (NMFS, 2006).
    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. 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 2008, 
NMFS published a final rule concerning right whale vessel collision 
reduction strategy and established 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 (73 FR 60173; 
October 10, 2008). Recent studies of right whales have shown that these 
whales tend to lack a response to the sounds of oncoming vessels 
(Nowacek et al., 2004). 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' 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 Measures 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 in 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 sensitivy, perception). Others will be necessarily 
qualitative, due to a 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 and 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 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

[[Page 76584]]

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 that is 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. 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.
    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 (conditions associated with disease or 
injury). 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 assumes 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.
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

[[Page 76585]]

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, the 
higher the level of impulse and pressure level exposure, the more 
severe the impact to an individual.
    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 causing decreased sensitivity (Ketten, 1995) (see Assessment of 
Marine Mammal Response to Anthropogenic Sound section below). 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 in this request include: FIREX 
with IMPASS, MISSILEX, MINEX, and Small Arms Training (explosive hand 
grenades). Table 6 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 70 Hellfire events per year that 
can take place in MLTR during any season, so

[[Page 76586]]

there are 17.5 events modeled for each season.

                                            Table 6. Number of Explosive Events within the JAX Range Complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Sub-Area                  Ordnance              Winter               Spring              Summer               Fall            Annual Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               MISSILEX             ...................  ...................  ..................  ..................  73
--------------------------------------------------------------------------------------------------------------------------------------------------------
MLTR                           Hellfire             17.5                 17.5                 17.5                17.5                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
MLTR                           Maverick             0.75                 0.75                 0.75                0.75                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               FIREX                ...................  ...................  ..................  ..................  10
--------------------------------------------------------------------------------------------------------------------------------------------------------
BB, CC                         5'' rounds           0**                  0**                  20                  5                   ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               MINEX                ...................  ...................  ..................  ..................  12
--------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET North                    20 LB                1.25                 1.25                 1.25                1.25                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET South                    20 LB                1.25                 1.25                 1.25                1.25                ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               Small Arms Training  ...................  ...................  ..................  ..................  80
--------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET North                    MK3A2 anti-swimmer   10                   10                   10                  10                  ..................
                                concussion grenade
                                (0.5 lbs NEW)
--------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET South                    MK3A2 anti-swimmer   10                   10                   10                  10                  ..................
                                concussion grenade
                                (0.5 lbs NEW)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Figure 1 of the LOA application for the location of sub-areas.
** In accordance with the current biological opinion for the Southeast, no live FIREX is conducted during North atlantic right whale calving season
  (December 1 - March 31) and therefore no modeling was completed for the winter and spring season.

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 s and the 
Addendum.
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 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 
impact areas for seven FIREX missions (each with four to six rounds 
fired) and one pre-FIREX action (with six rounds fired). Table 7 shows 
the Zone of Influence (ZOI) results of the model estimation.

               Table 7. Estimated ZOIs (km\2\) for a single FIREX (with IMPASS) Event (39 rounds)
----------------------------------------------------------------------------------------------------------------
                                 Level B ZOI @ 177 dB re 1
             Area*                microPa\2\ sec (multiple     Level B ZOI @ 23 psi    Level A ZOI @ 205 dB re 1
                                     detonations only)                                  microPa\2\ sec or 13 psi
----------------------------------------------------------------------------------------------------------------
BB, CC                           6.1397**                   3.7773                     0.16464
----------------------------------------------------------------------------------------------------------------
*Please see Figure 1 on page 2-2 of the LOA application for the locations of these areas.

[[Page 76587]]

 
**In this area, which occurs in shallow water, the 177 dB re 1 microPa\2\ sec behavioral disturbance criteria
  dominates over the 23 psi criteria and therefore was used in the analysis.

    The ZOI, when multiplied by the animal densities and the total 
number of events (Table 6), 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 
effect 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 one location in the JAX Range 
Complex. In addition to other mitigation measures, dedicated lookouts 
would be onboard the ship monitors the target area for marine mammals 
before the exercise, during the deployment of the IMPASS array, and 
during the return to firing position. Ships will not fire on the target 
until the area is cleared and will suspend the exercise if any marine 
mammals enter the buffer area. Additionally, naval guns would only be 
fired in an easterly direction, away from the North Atlantic right 
whale critical habitat and the associated area of concern, thereby 
reducing potential exposures to this critically endangered species. Due 
to safety reasons, the buffer zone must remain clear of all types of 
platforms. 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 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. Implementation of 
mitigation measures like these reduce the likelihood of exposure and 
potential effects in the ZOI.
2. MINEX
    The Comprehensive Acoustic System Simulation/Gaussian Ray Bundle 
(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/
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 over the pressure criteria and therefore used to determine the 
ZOI for the Level B exposure analysis. Table 8 shows the ZOI results of 
the model estimation.
    The total ZOI, when multiplied by the animal densities and total 
number of events (Table 5), 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. 
The underwater detonations are restricted to two boxes (Undet North, 
Undet South) designated in a Biological Opinion issued by NMFS located 
approximately 5 - 30 km (3.1 - 18.6 mi) offshore from Charleston, South 
Carolina. In addition to other mitigation measures (see Proposed 
Mitigation Measures section below), observers will survey the target 
area for marine mammals and sea turtles for 30 minutes prior through 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.

                Table 8. 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\  25%           minus> 25%
------------------------------------------------------------------------

3. MISSILEX (Hellfire and Maverick)
    Modeling was completed for two of the explosive missiles involved 
in MISSILEX, each assumed detonation at 1-m (3.3 ft) depth. The NEW 
used in simulations of the Hellfire and Maverick missiles are 8 lbs and 
80 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 9 shows the ZOI results of the model 
estimation. The total ZOI, when multiplied by the animal densities and 
total number of events (Table 6), 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. 
MISSILEX is only conducted in one area, the Missile Laser Training Area 
(MLTR) in the JAX Range Complex. 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.

[[Page 76588]]



                                                                          Table 9. 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
MLTR                            Hellfire        0.89            0.73        0.64        0.73        0.02        0.02        0.02        0.02        <0.01       <0.01       <0.01      <0.01
MLTR                            Maverick        0.91            0.91        0.79        0.91        0.11        0.07        0.07        0.11        <0.01       <0.01       <0.01      <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

4. Small Arms Training - Explosive hand grenades
    A quantitative analysis was conducted for MK3A2 anti-swimmer 
concussion grenades. A very low NEW (0.5-lb) is associated with this 
ordnance. In a previous Biological Opinion, the NMFS calculated the 
potential range within which sea turtles may be affected based on 
equations presented in Young (1991). The result was a ``safe range'' 
designed for zero injury to species within the calculated range. 
Equations specific to marine mammals, as presented in Young (1991), are 
as follows:
    Adult porpoise - RAP = 434 WE\0.28\
    20 ft. whale - RW = 327 WE\0.28\
    (R = range in feet, WE = weight of explosive in pounds)
    For an adult porpoise, the ``safe range'' is 114 yards (104 m); for 
a large whale (20 ft), the safe range is 86 yards (79 m). The ``safe 
range'' for an adult porpoise was used as a representative ZOI for 
marine mammals. The ZOI will be visually monitored during operations 
for all marine mammal species.

Summary of Potential Exposures from Explosive Ordnance Use

    Explosions that occur in the OPAREA are associated with training 
exercises that use explosive ordnance, which include missiles 
(MISSILEX), 5-in. explosive naval gun shells with IMPASS (FIREX), 
underwater detonations associated with Mine Neutralization training 
(MINEX), and hand grenades associated with small arms training. 
Explosive ordnance use is limited to specific training areas.
(1) MISSILEX, MINEX, and FIREX
    An explosive analysis was conducted to estimate the number of 
marine mammals that could be exposed to impacts from explosions. Table 
10 provides a summary of the explosive analysis results. Exposure 
estimates could not be calculated for several 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 limited available data for these species; 
however, the likelihood of exposure for species not expected to occur 
in the JAX Range Complex should be even lower than that estimated for 
species with occurrence frequent enough for densities to be calculated. 
In addition to the low likelihood of exposure, the mitigation measures 
presented below in this document would be implemented thus the level of 
impacts would be less than expected. Since the 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 harbour porpoise are considered rare in the 
Jacksonville Range Complex, no exposures are expected for these 
species. Fin, humpback whales, and sperm whales will have high 
detections 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 dolphins, common dolphins, pantropical spotted dolphins, 
Risso's dolphins, rough-toothed dolphins, and striped dolphins. 
Implementation of mitigation measures will reduce the likelihood of 
exposure and potential effects.

 Table 10. Summary of Potential Exposures from Explosive Ordnance (per year) for Marine Mammals in the JAX 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
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Humpback whale
-----------------------------------
        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 76589]]

 
North Atlantic right whale
-----------------------------------
        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
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Atlantic Spotted dolphin
-----------------------------------
        2MISSILEX training          NA                  31                  1                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           23                  NA                  1                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           23                  33                  2                  0
----------------------------------------------------------------------------------------------------------------
Beaked whale
-----------------------------------
        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
-----------------------------------
        2MISSILEX training          NA                  3                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           10                  NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  2                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           10                  5                   0                  0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin
-----------------------------------
        2MISSILEX training          NA                  1                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           1                   1                   0                  0
----------------------------------------------------------------------------------------------------------------
Common dolphin
-----------------------------------
        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 76590]]

 
Kogia spp.
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Minke whale
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin
-----------------------------------
        2MISSILEX training          NA                  1                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           1                   1                   0                  0
----------------------------------------------------------------------------------------------------------------
Pilot whales
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           1                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           1                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           3                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           3                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Striped dolphin
-----------------------------------
        2MISSILEX training          NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------
          2FIREX training           0                   NA                  0                  0
----------------------------------------------------------------------------------------------------------------
          2MINEX training           NA                  0                   0                  0
----------------------------------------------------------------------------------------------------------------

[[Page 76591]]

 
         2Total Exposures           0                   0                   0                  0
----------------------------------------------------------------------------------------------------------------
Note: Events were either modeled for 177 dB re 1 microPa\2\ sec due to multiple detonations (MISSILEX and FIREX)
  or modeled for 182 dB re 1 microPa\2\ sec or 23 psi due to single detonations (MISSILEX and MINEX). Therefore,
  for 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.

(2) Small Arms Training - Explosive hand grenades
    A quantitative explosive analysis was conducted to estimate the 
exposure of marine mammals to impacts from ordnance use associated with 
small arms training. The explosive ordnance used in small arms training 
includes the MK3A2 anti-swimmer concussion grenades. A very low NEW 
(0.5-lbs) is associated with this ordnance. These detonations occur in 
the very shallow waters (< 30 m, or 98 ft) of the UNDET North and South 
boxes and detonate at a depth of no greater than 3 m (9.8 ft). Most of 
the marine mammal species that may occur in the JAX Range Complex are 
known to occur in waters with depths of less than 30 m (98 ft).
    Using the 114 yd (104 m) ``safe range'' calculated for the MK3A2 
anti-swimmer concussion grenades as a representative ZOI (0.034 km\2\), 
potential exposures were calculated. No exposures for any marine mammal 
species were estimated.
    For all marine mammal species, small arms training exercises are 
not expected to result in Level A or Level B harassment as defined by 
the MMPA and therefore will not likely affect annual rates of 
recruitment or survival of the species. Furthermore, the mitigation 
measures described in later in this document are designed to reduce 
exposure of marine mammals to potential impacts to achieve the least 
practicable adverse effect on marine mammal species or populations.
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 would 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 due to 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 11 provides a list of potential 
takes of marine mammal species as a result of the proposed JAX Range 
Complex training activities.

   Table 11. Summary of Potential Takes from Explosive Ordnance (per year) for Marine Mammals in the JAX Range
                                                     Complex
----------------------------------------------------------------------------------------------------------------
               Species                    Level B harassment       Level A harassment           Mortality
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin               56                       2                        0
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                     15                       0                        0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin                        2                        0                        0
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin            2                        0                        0
----------------------------------------------------------------------------------------------------------------
Pilot whale                            1                        0                        0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin                        3                        0                        0
----------------------------------------------------------------------------------------------------------------


[[Page 76592]]

Proposed Mitigation Measures

General Maritime Measures

    The mitigation measures presented below would be taken by Navy 
personnel on a regular and routine basis. These are routine measures 
and are considered ``Standard Operating Procedures.
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 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
    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 would 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 and 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.
    4. Personnel on lookout will employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    5. After sunset and prior to sunrise, lookouts will employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    6. 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.
    7. When whales have been sighted in the area, Navy vessels will 
increase vigilance and shall implement measures to avoid collisions 
with marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Actions shall include 
changing speed and/or direction and are dictated by environmental and 
other conditions (e.g., safety, weather).
    8. 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.
    9. 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).
    10. Floating weeds, algal mats, Sargassum rafts, clusters of 
seabirds, and jellyfish are good indicators of marine mammals. 
Therefore, increased vigilance in watching for marine mammals will be 
taken where these are present.

[[Page 76593]]

     11. 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.
    12. 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.

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.

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 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 identifed 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 12 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 12. 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
----------------------------------------------------------------------------------------------------------------

I. Additional Mitigation Measures in the SE Region
    During North Atlantic right whale calving season, FACSFAC JAX 
provides an information resource through the right whale sightings 
clearinghouse. During calving season and within the consultation area 
(roughly an area to 80 nm seaward from Charleston, South Carolina, 
south to Sebastian Inlet, Florida) particular measures are in effect in 
accordance with the NMFS Biological Opinion issued in 1997 (NMFS, 
1997).
    The coastal waters off the Southeast United States (SEUS) support 
the only known calving ground for the North Atlantic right whale 
(NARW). In 2006, the Navy, U.S. Coast Guard (USCG), U.S. Army Corps of 
Engineers (USACE), and NMFS entered into a Memorandum of Agreement 
pursuant to the Endangered Species Act. The Early Warning System (EWS) 
is a result of that agreement and is a collaborative effort which 
involves comprehensive aerial surveys conducted daily, weather 
permitting, during the North Atlantic Right Whale calving season. East/
west transects are flown from shoreline to approximately 30-35 nm 
offshore. Aerial surveys are conducted to locate NARW and provide whale 
detection and reporting information to mariners in the NARW calving 
ground in an effort to avoid collisions with these endangered species. 
When a NARW is sighted, information from the aerial survey aircraft is 
passed to a ground contact. The ground contact e-mails the sighting 
information to a wide network distribution which includes Fleet Area 
Control and Surveillance Jacksonville (FACSFAC JAX), the USCG, the 
USACE and non-profit and commercial interests. In addition, the ground 
contact will follow up with a call to FACSFAC JAX to provide additional 
information if required. FACSFAC JAX records this valuable information 
and disseminates to all navy vessels and aircraft operating in the 
consultation area through the Secret Internet Protocol Router Network 
(SIPRNET) system. General sighting information and reporting procedures 
are broadcasted over the following methods: the NOAA weather radio; 
USCG NAVTEX system

[[Page 76594]]

and a Broadcast Notice to Mariners over VHF marine-band radio channel 
16. The EWS is a wide communication effort to ensure all vessels are 
aware of the most recent right whale sightings as an avoidance measure.
II. Measures Applicable to the ``Consultation Area'' in the JAX/CHASN 
OPAREAs during North Atlantic Right Whale Calving Season
    The following measures from the NMFS Biological Opinion issued in 
1997 (NMFS, 1997) will be implemented:
    1. Naval vessels operating within North Atlantic right whale 
critical habitat and the Associated Area of Concern (AAOC) will 
exercise extreme caution and use slow safe speed, that is, the slowest 
speed that is consistent with essential mission, training, and 
operations.
    2. Exercise extreme caution and use slow, safe speed when a whale 
is sighted by a vessel or when the vessel is within 5 nm of a reported 
new sighting less than 12 hours old.
    3. Circumstances could arise where, in order to avoid North 
Atlantic right whale(s), speed reductions could mean vessels must 
reduce speed to a minimum at which it can safety keep on course (bare 
steerageway) or vessels could come to an all stop.
    4. During the North Atlantic right whale calving season north-south 
transits through the critical habitat are prohibited, except for those 
exercises that necessarily operate at a slow, safe speed. Naval vessel 
transits through the area shall be in an east-west direction, and shall 
use the most direct route available during the calving season.
    5. Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season will be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods 
of poor visibility, vessels will operate as if in the vicinity of a 
recently reported NARW sighting.
    6. Command, Control and Communication.
     FACSFAC JAX shall coordinate ship/aircraft clearance into 
the operating area based on prevailing conditions, including water 
temperature, weather conditions, whale sighting data, mission or event 
to be conducted and other pertinent information. Commander Submarine 
Atlantic (COMSUBLANT) will coordinate any submarine operations that may 
require clearance with FACSFAC JAX. FASFAC JAX will provide data to 
ships and aircraft, including USCG if requested, and will recommend 
modifying, moving or canceling events as needed to prevent whale 
encounters. Commander Submarine Group Ten (COMSUBGRU TEN) will provide 
same information/guidance to subs.
     Prior to transiting or training in the critical habitat 
ships will contact FASFAC JAX to obtain latest whale sighting and other 
information needed to make informed decisions regarding safe speed and 
path of intended movement. Subs shall contact COMSUBGRU TEN for similar 
information. Ships and aircraft desiring to train/operate inside the 
critical habitat or within the warning/operating area shall coordinate 
clearance with FASFAC JAX. Subs shall obtain same clearance from CTF-82 
(COMSUBLANT).
     FACSFAC JAX will coordinate local procedures for whale 
data entry, update, retrieval and dissemination using joint maritime 
command information system. Ships not yet Officer in Tactical Command 
Information Exchange subsystem capable, including USCG, will 
communicate via satellite communication, telephone system or 
international marine/maritime satellite.
    7. The only type of exercise that may be conducted inside the 
critical habitat and AAOC in calving season is precision anchorage 
drills and swept channel exercises. In addition, use of the Shipboard 
Electronic System Evaluation Facility range is authorized with 
clearance and advice from FACSFAC JAX.

Proposed Mitigation Measures for Specific At-sea Training Events

    These actions are standard operating procedures that are in place 
currently and will be used in the future for all activities being 
analyzed in this LOA request.
I. Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds)
    In accordance with the NMFS Biological Opinion issued in 1997 
(NMFS, 1997), the Navy has been conducting FIREX using IMPASS in one 
location in the JAX Study Area: Areas AA, BB and CC (see Figure 1 of 
the LOA application), which are adjacent to one another. Under the 
Biological Opinion, explosive ordnance could be used only in Areas BB 
and CC during non-North Atlantic right whale calving season. Recent 
explosive and non-explosive ordnance exposure analysis concluded there 
is no seasonal difference in exposure for the North Atlantic right 
whale between any of the gunnery boxes because there is no difference 
in densities between these areas; therefore, the restriction on the use 
of Area AA is unnecessary during calving season. Regardless, under the 
preferred alternative Area AA would continue to be restricted to avoid 
proximity to North Atlantic right whale critical habitat. This 
restriction is operationally feasible because the additional steaming 
time from the homeport of ships conducting FIREX with IMPASS (e.g. 
Naval Station Mayport, Florida) is not significantly greater than the 
steaming time required to reach Area AA. Further, surface ships 
conducting FIREX using IMPASS do not have strict distance from land 
restrictions like those imposed on aircraft that embark from shore-
based facilities.
    The following measures would be implemented for FIREX using IMPASS:
    1. This activity would only occur in Areas BB and CC.
    2. During North Atlantic right whale calving season no explosive 
ordnance will be used.
    3. 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 would 
maintain a lookout dedicated to visually searching for marine mammals 
and sea turtles 180 along the ship track line and 360 at each buoy 
drop-off location.
    4. ``Big Eyes'' on the ship will be used to monitor a 600 yard (548 
m) buffer zone 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.
    5. Ships will not fire on the target if marine mammals are detected 
within or approaching the 600 yd (548 m) buffer zone until the area is 
cleared. 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.
    6. 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.
    7. FIREX with IMPASS will take place during daylight hours only.
    8. FIREX with IMPASS will only be used in Beaufort Sea State three 
(3) or less.

[[Page 76595]]

    9. The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    10. No firing will occur if marine mammals are detected within 70 
yards (64 m) of the vessel.
II. Air-to-Surface Missile Exercises (Explosives)
    Historically, this activity occurs in the Missile Laser Training 
Range (MLTR) in the JAX Study Area. This location was established to be 
far enough from shore to reduce civilian encounters (e.g., diving and 
recreational fishing), while remaining within 60 nm from shore-based 
facilities (the established flight distance restriction for helicopters 
during unit level training events).
    The following measures will be implemented:
    1. This activity will only occur in the Missile Laser Training 
Range (MLTR).
    2. Aircraft will visually survey the target area for marine 
mammals. Visual inspection of the target area will be made by flying at 
1,500 ft (457 m) 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 yards (1,646 m) of sighted marine mammals.
III. Mine Neutralization Training Involving Underwater Detonations (up 
to and including 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 UNDETs of up 
to 20-lbs explosive charges related to MINEX training (NMFS, 2002). 
This activity will occur in two locations: Undet North (10L) and Undet 
South (12I). These locations are offshore from Naval Weapons Station 
Charleston, South Carolina, a restricted-access Naval Installation. 
These locations have 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, 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. Underwater detonations are restricted to Undet North and Undet 
South. These sites are located in the Charleston/JAX OPAREAs offshore 
of Charleston, South Carolina.
    2. Observers will survey the buffer zone, a 700 yds (640 m) radius 
from detonation location, for marine mammals and sea turtles from all 
participating vessels during the entire operation. A survey of the 
buffer zone (minimum of three parallel tracklines 219 yds (200 m) apart 
using support craft will be conducted at the detonation location 30 
minutes prior through 30 minutes post detonation. During late July 
through October, an additional surface observer will be added to more 
carefully look for hatchling turtles in the buffer zone. Aerial survey 
support will be utilized whenever assets are available.
    3. Detonation operations will be conducted during daylight hours 
only.
    4. If a marine mammal is sighted within the buffer zone, 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 buffer zone will be clear for 30 
minutes prior to detonation.
    6. No detonations will take place within 3.2 nm (5.93 km) of an 
estuarine inlet (e.g., Charleston Harbor).
    7. No detonations will take place within 1.6 nm (2.96 km) of 
shoreline.
    8. No detonations will take place within 1,000 ft (305 m) of any 
known 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 buffer zone.
IV. Small Arms Training - Explosive hand grenades (such as the MK3A2 
grenades)
    1. Lookouts will visually survey for floating weeds, algal mats, 
Sargassum rafts, marine mammals, and sea turtles.
    2. A 200 yd (182 m) radius buffer zone will be established around 
the intended target. The exercises will be conducted only if the buffer 
zone is clear of sighted marine mammals.
Adaptive Management
    The final regulations governing the take of marine mammals 
incidental to Navy training exercises in JAX Range Complex 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 JAX 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 JAX Range Complex include a 
combination of individual elements designed to allow a comprehensive 
assessment include:
    (1) Vessel and aerial surveys
    (i) Visual surveillance of 2 events per year. The primary goal will 
be to survey

[[Page 76596]]

two different types of explosive events with one of them being a 
multiple detonation event.
     (ii) For surveyed 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.
    (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, a 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 sighting will be conducted according to a standard 
operating procedure.
    The Navy would submit a report annually on September 1 describing 
the implementation and results (through June 1 of the same year) of the 
monitoring required above. 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.
    JAX Range Complex Comprehensive Report - The Navy will submit to 
NMFS a draft report that summarizes all of the marine mammal 
observations and data gathered during explosive exercises through June 
1, 2012. This report will be submitted to NMFS at the end of the fourth 
year of the rule (November 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 monitoring 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 purposes of MMPA authorizations, NMFS' 
effects assessments have two primary purposes (in the context of the 
JAX Range Complex Final Rule, LOA, subsequent LOA, if appropriate): (1) 
to put forth the permissible methods of taking within the context of 
MMPA Level B Harassment (behavioral harassment) and Level A Harassment 
(injury); 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).
    In the Assessment of Marine Mammal Response to Anthropogenic Sound 
section, NMFS' analysis identified the lethal responses, physical 
trauma, sensory impairment (permanent and

[[Page 76597]]

temporary threshold shifts and acoustic masking), physiological 
responses (particular stress responses), and behavioral responses that 
could 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 JAX 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, the 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, the 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, 
proportion of exposed animals underwater (so not visible), many animals 
located many miles froorm 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). 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

[[Page 76598]]

to the Air Force by NMFS (NMFS, 2005c).
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) and onset of slight lung injury. These 
criteria are considered indicative of the onset of injury. The 
threshold for tympanic-membrane (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 value is stated in terms 
of an Energy Flux Density Level (EL) value of 1.17 inch pounds per 
square inch (in-lb/in2), approximately 205 dB re 1 
microPa\2\[middot]sec.
    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 single explosive events.
    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). Since FIREX 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 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 without-TTS (behavioral change 
without onset of 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) 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). 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 (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

[[Page 76599]]

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 10 Hz for baleen whales. As 
stated previously for TTS, for small explosives (<1500 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.
II. Summary of Thresholds and Criteria for Impulsive Sounds
    Table 13 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.

                                            Table 13. 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 explosives   Level B
Physiological                                                    exposures                      <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 13. Additional information regarding the 
derivation of these criteria is available in the Navy's FEIS for the 
JAX Range Complex and in the Navy's CHURCHILL FEIS (U.S. Department of 
the Navy, 2001).

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 can 
be considered to have negligible effects to marine mammal species or 
population.
    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

[[Page 76600]]

considered stationary, accumulating energy until the threshold is 
tripped.
    These modeling results do not take into account the mitigation 
measures (detailed in the Proposed Mitigation Measure section above) 
that lower the potential for exposures to occur given standard range 
clearance procedures and the likelihood that these species can be 
readily detected (e.g., small animals move quickly throughout the water 
column and are often seen riding the bow wave of large ships or in 
large groups). With the mitigation and monitoring measures implemented, 
NMFS does not believe that there would be any 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 JAX 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 a known North 
Atlantic right whale calving critical habitat within the JAX Range 
Complex. However, potential impacts to marine mammal habitat are not 
anticipated to alter the function of the habitat and, therefore, will 
have little to no impact of marine mammal species.

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 here, NMFS has preliminarily 
determined that the issuance of 5-year regulations as LOA is 
appropriate for Navy training exercises utilizing underwater 
detonations will have a negligible impact on the marine mammal species 
and stocks present in the JAX Range Complex.

Subsistence Harvest of Marine Mammals

     NMFS has preliminarily determined that the issuance of an LOA for 
Navy training exercises in the JAX 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 JAX 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 JAX 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 JAX Range Complex training activities. A draft EIS was 
released for public comments from June 27 - August 11, 2008, and it is 
available at http://www.jacksonvillerangecomplexeis.com/. NMFS is a 
cooperating agency (as defined by the Council on Environmental Quality 
(40 CFR 1501.6)) in the preparation of the EIS. NMFS has reviewed the 
Draft EIS and will be working with the Navy on the Final EIS (FEIS).
    NMFS intends to adopt the Navy's FEIS, if adequate and appropriate, 
and we believe that the Navy's FEIS will allow NMFS to meet its 
responsibilities under NEPA for the issuance of the 5-year regulation 
and LOAs for training activities in the JAX Range Complex. If the 
Navy's FEIS were 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 JAX Range Complex will have a negligible 
impact on the affected marine mammal species or stocks. NMFS has 
proposed regulations for these exercises that prescribe the means of 
affecting the least practicable adverse impact on marine mammals and 
their habitat and set forth requirements pertaining to the monitoring 
and reporting of that taking.

Classification

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act
    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 Section 605B of the Regulatory Flexibility Act, the 
Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. 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 218

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


[[Page 76601]]


    Dated: December 9, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 218, as proposed 
to be added at 73 FR 75655, December 12, 2008, is proposed to be 
amended as follows:

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

    1. The authority citation for part 218 continues to read as 
follows:

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

    2. Subpart B is added to part 218 to read as follows:

Subpart B--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Jacksonville Range Complex

Sec.
218.10 Specified activity and specified geographical region.
218.11 Permissible methods of taking.
218.12 Prohibitions.
218.13 Mitigation.
218.14 Requirements for monitoring and reporting.
218.15 Applications for Letters of Authorization.
218.16 Letters of Authorization.
218.17 Renewal of Letters of Authorization.
218.18 Modifications to Letters of Authorization.

Subpart B--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Jacksonville Range Complex


Sec.  218.10  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that 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 JAX Range Complex, which is located along the 
southern east coast of the U.S. The two principal OPAREAs within the 
JAX Study Area are the Jacksonville OPAREA and the Charleston OPAREA 
(sometimes referred to collectively as the JAX/CHASN OPAREA, or simply 
the OPAREA). The northernmost point of the JAX/CHASN OPAREA is located 
just north of Wilmington, North Carolina (34[deg]37' N) in waters less 
than 20 m (65.6 ft) deep, while the easternmost boundary lies 281 nm 
(518.6 km) offshore of Jacksonville, Florida (77[deg]00' W in waters 
with a bottom depth of nearly 2,000 m (6,562 ft).
    (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 
paragraph (c)(1)(i) conducted as part of the training exercises 
indicated in this paragraph (c)(1)(ii):
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) AGM-65 E/F (Maverick missile);
    (C) Mine Neutralization (20 lb NEW charges);
    (D) 5'' Naval Gunfire.
    (ii) Training Events:
    (A) Mine Neutralization (20 lb NEW charges) - up to 60 exercises 
over the course of 5 years (an average of 12 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile) 
- up to 350 exercises over the course of 5 years (an average of 70 per 
year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick) - up to 
15 exercises over the course of 5 years (an average of 3 per year);
    (D) FIREX with IMPASS - up to 50 exercises over the course of 5 
years (an average of 10 per year); and
    (E) Small Arms Training with MK3A2 anti-swimmer concussion grenade 
(0.5 lbs NEW) - up to 400 events over the course of 5 years (an average 
of 80 events per year).
    (2) [Reserved]


Sec.  218.11  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 of this chapter and 218.16, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec.  218.10 (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.  218.10 (c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.10 (c) is limited to the following species, by 
the indicated method of take the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus) - 15;
    (ii) Pantropical spotted dolphin (Stenella attenuata) - 2;
    (iii) Clymene dolphin (S. clymene) - 2;
    (iv) Atlantic spotted dolphin (S. frontalis) - 56;
    (v) Risso's dolphin (Grampus griseus) - 3;
    (vi) Pilot whales (Globicephala sp.) - 1.
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin - 2.
    (ii) [Reserved]


Sec.  218.12  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.11 and authorized 
by a Letter of Authorization issued under Sec.  216.106 of this chapter 
and Sec.  218.16, no person in connection with the activities described 
in Sec.  218.10 may:
    (a) Take any marine mammal not specified in Sec.  218.11 (c);
    (b) Take any marine mammal specified in Sec.  218.11 (c) other than 
by incidental take as specified in Sec.  218.11(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  218.11 (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.  218.16.


Sec.  218.13  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.10(a), the mitigation measures contained in the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.16 must be implemented. These mitigation measures include (but are 
not limited to):
    (1) General Maritime Measures. The ``Standard Operating 
Procedures'' for mitigation measures presented below shall be taken by 
Navy personnel on a regular and routine basis.
    (i) Personnel Training Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete MSAT.
    (B) Navy lookouts shall undertake extensive training to qualify as 
a watchstander in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts 
shall complete the Personal Qualification Standard Program, certifying 
that they have

[[Page 76602]]

demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout shall scan for approximately five 
seconds in as many small steps as possible across the field seen 
through the binoculars. They shall search the entire sector in 
approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses shall be lowered to allow the eyes to rest 
for a few seconds, and then the lookout shall search back across the 
sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts shall watch for 
and report to the OOD the presence of marine mammals.
    (D) Personnel on lookout will employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (G) When whales have been sighted in the area, Navy vessels shall 
increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate.
    (K) All vessels shall maintain logs and records documenting 
training operations should they be required for event reconstruction 
purposes. Logs and records shall be kept for a period of 30 days 
following completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any 
time during or within 24 hours after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) 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 12 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.
    (C) Additional Mitigation Measures in the Consultation Area during 
North Atlantic Right Whale Calving Season. The following measures from 
the NMFS Biological Opinion issued in 1997 (NMFS, 1997) shall be 
implemented for activities the consultation area (roughly an area to 80 
nm (148 km) seaward from Charleston, South Carolina, south to Sebastian 
Inlet, Florida) during North Atlantic right whale calving season:
    (1) Naval vessels operating within North Atlantic right whale 
critical habitat and the Associated Area of Concern (AAOC) shall 
exercise extreme caution and use slow safe speed, that is, the slowest 
speed that is consistent with essential mission, training, and 
operations.
    (2) Exercise extreme caution and use slow, safe speed when a whale 
is sighted by a vessel or when the vessel is within 5 nm (9 km) of a 
reported new sighting less than 12 hours old.
    (3) During the North Atlantic right whale calving season north-
south transits through the critical habitat are prohibited, except for 
those exercises that necessarily operate at a slow, safe speed. Naval 
vessel transits through the area shall be in an east-west direction, 
and shall use the most direct route available during the calving 
season.

[[Page 76603]]

    (4) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods 
of poor visibility, vessels shall operate as if in the vicinity of a 
recently reported North Atlantic right whale sighting.
    (5) Command, Control and Communication.
    (i) Fleet Area Control and Surveillance Jacksonville (FACSFAC JAX) 
shall coordinate ship/aircraft clearance into the operating area based 
on prevailing conditions, including water temperature, weather 
conditions, whale sighting data, mission or event to be conducted and 
other pertinent information. Commander Submarine Atlantic (COMSUBLANT) 
shall coordinate any submarine operations that may require clearance 
with FACSFAC JAX. FASFAC JAX shall provide data to ships and aircraft, 
including USCG if requested, and shall recommend modifying, moving or 
canceling events as needed to prevent whale encounters. Commander 
Submarine Group Ten (COMSUBGRU TEN) shall provide same information/
guidance to subs.
    (ii) Prior to transiting or training in the critical habitat ships 
shall contact FASFAC JAX to obtain latest whale sighting and other 
information needed to make informed decisions regarding safe speed and 
path of intended movement. Subs shall contact COMSUBGRU TEN for similar 
information. Ships and aircraft desiring to train/operate inside the 
critical habitat or within the warning/operating area shall coordinate 
clearance with FASFAC JAX. Subs shall obtain same clearance from CTF-82 
(COMSUBLANT).
    (iii) FACSFAC JAX shall coordinate local procedures for whale data 
entry, update, retrieval and dissemination using joint maritime command 
information system. Ships not yet Officer in Tactical Command 
Information Exchange subsystem capable, including USCG, shall 
communicate via satellite communication, regular telephone system or 
international marine/maritime satellite.
    (4) Proposed Mitigation Measures for Specific At-sea Training 
Events. The following actions are standard operating procedures that 
are in place currently and shall be used in the future for all 
activities being analyzed in this LOA request.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds):
    (A) This activity shall only occur in Areas BB and CC.
    (B) During North Atlantic right whale calving season no explosive 
ordnance shall be used.
    (C) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain a lookout dedicated to visually searching for marine mammals 
180 along the ship track line and 360 at each buoy drop-off location.
    (D) ``Big Eyes'' on the ship shall be used to monitor a 600 yard 
(548 m) buffer zone for marine mammals during naval-gunfire events.
    (E) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone 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.
    (F) 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.
    (G) FIREX with IMPASS shall take place during daylight hours only.
    (H) FIREX with IMPASS shall only be used in Beaufort Sea State 
three (3) or less.
    (I) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (J) No firing shall occur if marine mammals are detected within 70 
yards (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) This activity shall only occur in the Missile Laser Training 
Range (MLTR).
    (B) Aircraft shall visually survey the target area for marine 
mammals prior to the exercise. 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. 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 yards (1,646 m) of sighted 
marine mammals.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) Underwater detonations are restricted to Undet North and Undet 
South. These sites are located in the Charleston/JAX OPAREAs offshore 
of Charleston, South Carolina.
    (B) Observers shall survey the buffer zone, a 700 yds (640 m) 
radius from detonation location, for marine mammals and sea turtles 
from all participating vessels during the entire operation. A survey of 
the buffer zone (minimum of three parallel tracklines 219 yds (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 
only.
    (D) If a marine mammal is sighted within the buffer zone, 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 shell be allowed to 
leave of their own volition and the buffer zone shall be clear for 30 
minutes prior to detonation.
    (F) Personnel shall record any marine mammal species observations 
during the exercise as well as measures taken if species are detected 
within the buffer zone.
    (iv) Small Arms Training - Explosive hand grenades (such as the 
MK3A2 grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200 yd (182 m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the 
buffer zone is clear of sighted marine mammals.
    (v) Adaptive management:
    (A) The final regulations governing the take of marine mammals 
incidental to Navy training exercises in JAX Range Complex 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.  218.14  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to

[[Page 76604]]

Sec.  216.106 of this chapter and Sec.  218.16 for activities described 
in Sec.  218.10(b) 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.  218.10(b) 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.  218.10(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 JAX Range Complex include a combination of individual elements 
designed to allow a comprehensive assessment include:
    (1) Vessel and aerial surveys:
    (i) Visually survey two events per year. The primary goal shall be 
to survey two different types of explosive events with one of them 
being a multiple detonation event.
    (ii) For surveyed training events, aerial or vessel surveys shall 
be used 1-2 days prior to, during if safely possible, 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.
    (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. 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 shall 
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.
    (2) Passive acoustic monitoring:
    (i) When practical, a towed hydrophone array should be used 
whenever shipboard surveys are being conducted. The towed array shall 
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 shall be used to 
supplement the ship-based systematic line-transect surveys 
(particularly for species such as beaked whales that are rarely seen).
    (iii) The array shall need to detect low frequency vocalizations (< 
1,000 Hz) for baleen whales and relatively high frequency (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) shall 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 shall be used; contracted MMOs must have appropriate 
security clearance to board Navy platforms.
    (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 sighting 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 (d) of this section.
    (f) JAX 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.  218.14 (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.
    (h) 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.  218.15  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103 of this chapter) 
conducting the activity identified in Sec.  218.10(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec.  218.16 or a renewal under Sec.  218.17.


Sec.  218.16  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.  218.17.
    (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.

[[Page 76605]]

    (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.  218.17  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.16 for the activity identified in Sec.  218.10(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.15 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.  
218.14(b); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.13 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.16, 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.  218.17 indicates that a 
substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming season will occur, the 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.  218.18  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.  218.16 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.  218.17, 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.  218.10(b), a Letter of 
Authorization issued pursuant to Sec.  216.106 of this chapter and 
Sec.  218.16 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. E8-29761 Filed 12-16-08; 8:45 am]
BILLING CODE 3510-22-S