[Federal Register Volume 74, Number 49 (Monday, March 16, 2009)]
[Proposed Rules]
[Pages 11052-11077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5474]



[[Page 11052]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AX10


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Cherry Point 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 Cherry Point Range Complex for the period of May 
2009 through May 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 April 6, 
2009.

ADDRESSES: You may submit comments, identified by 0648-AX10, 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 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 NA in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the Navy's application may be obtained by writing to the 
address specified above (See ADDRESSES), telephoning the contact listed 
above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The Navy's 
Draft Environmental Impact Statement (DEIS) for the Cherry Point Range 
Complex was published on September 12, 2008, and may be viewed at 
http://www.NavyCherryPointRangeComplexEIS.com. NMFS participated in the 
development of the Navy's DEIS as a cooperating agency under the 
National Environmental Policy Act (NEPA).

Background

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

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

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

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

Summary of Request

    On June 13, 2008, NMFS received an application from the Navy 
requesting authorization for the take of Atlantic spotted dolphin 
incidental to the proposed training activities in the Cherry Point 
Range Complex over the course of 5 years. These training activities are 
classified as military readiness activities. The Navy states that these 
training activities may cause various impacts to marine mammal species 
in the proposed Cherry Point Range Complex area. The Navy requests an 
authorization to take two individuals of this species annually by Level 
B Harassment. Please refer to the take table on page 6 of the Addendum 
of the LOA application for detailed information of the potential 
exposures from explosive ordnance (per year) for marine mammals in the 
Cherry Point Range Complex. However, due to the implementation of the 
proposed mitigation and monitoring measures, NMFS believes that the 
actual take would be less than estimated.

Description of the Specified Activities

    The Navy Cherry Point Range Complex geographically encompasses 
offshore and near-shore operating areas (OPAREAs), instrumented ranges, 
and special use airspace (SUA) located along the southern east coast 
(North Carolina and South Carolina) of the U.S. Atlantic coast (see 
Figure 1 of the LOA application). The action area includes the area 
from the shoreline to the 3 nm (5.6 km) boundary of the OPAREA, as well 
as the Cherry Point OPAREA. Together, components of the Navy Cherry 
Point Range Complex encompass:
     18,966 nm\2\ of special use airspace (warning area);
     18,617 nm\2\ of offshore surface and subsurface OPAREA; 
and
     12,529 nm\2\ of subsurface area greater than 100 fathoms 
(600 ft) in depth.
    In the application submitted to NMFS, the Navy requests an 
authorization to take marine mammals incidental to conducting training 
operations within the Cherry Point Range Complex. These training 
activities consist of surface warfare, mine warfare, amphibious 
warfare, and vessel movement. A description of each

[[Page 11053]]

of these training activities is provided below:

Surface Warfare

    Surface Warfare (SUW) supports defense of a geographical area 
(e.g., a zone or barrier) in cooperation with surface, subsurface, and 
air forces. SUW operations detect, localize, and track surface targets, 
primarily ships. Detected ships are monitored visually and with radar. 
Operations include identifying surface contacts, engaging with weapons, 
disengaging, evasion, and avoiding attack, including implementation of 
radio silence and deceptive measures. For the proposed Cherry Point 
Range Complex training operations, SUW events involving the use of 
explosive ordnance include air-to-surface Missile Exercises (MISSILEX) 
that occur at sea.
    Air-to-surface missile exercises involve helicopter (AH-1W) crews 
launching missiles at at-sea surface targets with the goal of 
destroying or disabling the target. MISSILEX (A-S) training in the Navy 
Cherry Point Study Area can occur during the day or at night. Table 1 
below summarizes the level of MISSILEX planned in the Cherry Point 
Range Complex for the proposed action.

                  Table 1--Level of MISSILEX Planned in the Cherry Point Range Complex per Year
----------------------------------------------------------------------------------------------------------------
                                                                                               Potential time of
           Operation                 Platform          System/ordnance       Number of events         day
----------------------------------------------------------------------------------------------------------------
Missile Exercise (MISSILEX)      AH-1W...........  AGM-114 (Hellfire; 8-    8 sorties (5 HE    Day or Night.
 (Air to Surface).                                  pound [lb] Net           missiles; 3
                                                    Explosive Weight [NEW]   NEPM).
                                                    High Explosive [HE]
                                                    rounds \1\ and Non-
                                                    Explosive Practice
                                                    Munitions [NEPM]).
                                                   Tube-launched,           8 sorties (8
                                                    Optically tracked,       missiles).
                                                    Wire-guided (TOW)
                                                    Missile (all 15.33 NEW
                                                    HE rounds)\1\.
----------------------------------------------------------------------------------------------------------------
\1\ Uses stationary or towed surface targets; 1 missile/sortie.

Mine Warfare/Mine Exercises

    Mine Warfare (MIW) includes the strategic, operational, and 
tactical use of mines and mine countermine measures (MCM). MIW is 
divided into two basic subdivisions: (a) The laying of mines to degrade 
the enemy's capabilities to wage land, air, and maritime warfare, and 
(b) the countering of enemy-laid mines to permit friendly maneuver or 
use of selected land or sea areas (DoN, 2007d).
    MIW consists of two unit level operations: Airborne mine 
countermeasures (AMCM) and mine neutralization. AMCM or Mine 
Countermeasures Exercises (MCMEX) train forces to detect, identify, 
classify, mark, avoid, and disable (or verify destruction of) 
underwater mines (bottom or moored) using a variety of methods 
including air, surface, sub-surface, and ground assets. The AMCM 
systems include mine hunting sonar (AQS-24A), influence mine sweeping 
systems (MK-105 and MK-104), anti-mine ordnance (Airborne Mine 
Neutralization System [AMNS]), and moored mine sweep system (MK-103).
    Mine Neutralization operations involve the detection, 
identification, evaluation, rendering safe, and disposal of underwater 
Unexploded Ordnance (UXO) that constitutes a threat to ships or 
personnel. Mine hunting techniques involve divers, specialized sonar, 
and unmanned underwater vehicles (UUVs) to locate and classify the 
mines and then destroy them using one of two methods: mechanical 
(explosive cutters) or influence (matching the acoustic, magnetic, or 
pressure signature of the mine).
    In addition to the current mine exercises (AMCM), the Organic 
Airborne Mine Countermeasures (OAMCM) training exercises will begin in 
the Navy Cherry Point Operating Area (OPAREA) as these new systems are 
introduced into the fleet. The OAMCM systems include mine hunting sonar 
(AQS-20), influence mine sweeping towed arrays (Organic Airborne and 
Surface Influence Sweep [OASIS]) that emulates the magnetic and 
acoustic signatures of transit platforms, anti-mine ordnance systems 
(Rapid Airborne Mine Clearance System [RAMICS] and AMNS), and mine 
hunting laser (Airborne Laser Mine Detection System [ALMDS]) that uses 
a light imaging detecting and ranging (LIDAR) to detect, localize, and 
classify near-surface moored/floating mines.
    MIW training using Explosive Ordnance Disposal (EOD) underwater 
detonations in the Navy Cherry Point Study Area occur only during 
daylight hours in the locations described in Figure 1 of the LOA 
application. Table 2 below shows a summarized level of MIW in the 
Cherry Point Study Area.

                Table 2--Level of Mine Warfare Planned in the Cherry Point Range Complex per Year
----------------------------------------------------------------------------------------------------------------
                                                                  Number of      Potential time    Duration of
          Operation               Platform    System/ordnance  events per year       of day           event
----------------------------------------------------------------------------------------------------------------
Mine Neutralization..........  EOD..........  20 lb NEW        20 events......  Day............  8 hours.
                                               charges.
----------------------------------------------------------------------------------------------------------------

    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 
coastal minehunter 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 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 Cherry Point Area.

Amphibious Warfare

    Amphibious Warfare (AMW) involves the utilization of naval 
firepower and logistics in combination with U.S. Marine Corps (USMC) 
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

[[Page 11054]]

and close air support training. In the Cherry Point Study Area, AMW 
training 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 in the Cherry Point Study Area 
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 Cherry Point Range Complex for the 
proposed action.

             Table 3--Level of FIREX With IMPASS Planned in the Cherry Point Range Complex per Year
----------------------------------------------------------------------------------------------------------------
                                                                  Number of      Potential time    Duration of
          Operation               Platform    System/ordnance       events           of day           event
----------------------------------------------------------------------------------------------------------------
FIREX with IMPASS............  CG, DDG......  5'' gun          2 events (78     Day............  12 hours.
                                               (IMPASS).        rounds).
----------------------------------------------------------------------------------------------------------------

Vessel Movement

    Vessel movements are associated with most activities under the 
training operations in the Navy Cherry Point Study Area. Currently, the 
number of Navy vessels operating in the Navy Cherry Point Study Area 
varies based on training schedules and can range from 0 to about 10 
vessels at any given time. Ship sizes range from 362 ft for a submarine 
(SSN) to 1,092 ft for an aircraft carrier (CVN) and speeds generally 
range from 10 to 14 knots (kt). Operations involving vessel movements 
occur intermittently and are variable in duration, ranging from a few 
hours up to 2 weeks. These operations are widely dispersed throughout 
the OPAREA, which is a vast area encompassing 18,617 square nautical 
miles (nm\2\) (an area approximately the size of West Virginia). The 
Navy logs about 950 total vessel days within the Study Area during a 
typical year. Consequently, the density of ships within the Study Area 
at any given time is extremely low (i.e., less than 0.005 ships/nm\2\).

Description of Marine Mammals in the Area of the Specified Activities

    There are 33 cetacean species, 4 pinniped species, and 1 sirenian 
species that have the potential or are confirmed to occur in the Cherry 
Point Range Complex (DoN, 2008). However, only 34 of those species are 
expected to occur regularly in the OPAREA, as indicated in Table 4. The 
remaining species are considered extralimital in the Study Area; 
indicating there are one or more records of an animal's presence in the 
Study Area, but it is considered beyond the normal range of the 
species. Extralimital species will not be analyzed further in this 
study.

 Table 4--Marine Mammal Species Found in the Cherry Point Range Complex
------------------------------------------------------------------------
 Family and scientific name        Common name         Federal status
------------------------------------------------------------------------
                              Order Cetacea
                   Suborder Mysticeti (baleen whales)
------------------------------------------------------------------------
Eubalaena glacialis.........  North Atlantic right  Endangered.
                               whale.
Megaptera novaeangliae......  Humpback whale......  Endangered.
Balaenoptera acutorostrata..  Minke whale.........
B. brydei...................  Bryde's whale.......
B. borealis.................  Sei whale...........  Endangered.
B. physalus.................  Fin whale...........  Endangered.
B. musculus.................  Blue whale..........  Endangered.
------------------------------------------------------------------------
                  Suborder Odontoceti (toothed whales)
------------------------------------------------------------------------
Physeter macrocephalus......  Sperm whale.........  Endangered.
Kogia breviceps.............  Pygmy sperm whale...
K. sima.....................  Dwarf sperm whale...
Ziphius cavirostris.........  Cuvier's beaked
                               whale.
Mesoplodon minus............  True's beaked whale.
M. europaeus................  Gervais' beaked
                               whale.
M. bidens...................  Sowerby's beaked
                               whale.
M. densirostris.............  Blainville's beaked
                               whale.
Steno bredanensis...........  Rough-toothed
                               dolphin.
Tursiops truncatus..........  Bottlenose dolphin..
Stenella attenuata..........  Pantropical spotted
                               dolphin.
S. frontalis................  Atlantic spotted
                               dolphin.
S. longirostris.............  Spinner dolphin.....
S. clymene..................  Clymene dolphin.....
S. coeruleoalba.............  Striped dolphin.....
Delphinus delphis...........  Common dolphin......
Lagenodephis hosei..........  Fraser's dolphin....
Grampus griseus.............  Risso's dolphin.....
Peponocephala electra.......  Melon-headed whale..
Feresa attenuata............  Pygmy killer whale..
Pseudorca crassidens........  False killer whale..
Orcinus orca................  Killer whale........

[[Page 11055]]

 
Globicephala melas..........  Long-finned pilot
                               whale.
G. macrorhynchus............  Short-finned pilot
                               whale.
Phocoena phocoena...........  Harbor porpoise.....
------------------------------------------------------------------------
                             Order Carnivora
            Suborder Pinnipedia (seals, sea lions, walruses)
------------------------------------------------------------------------
Phoca vitulina..............  Harbor seal.........
------------------------------------------------------------------------
                              Order Sirenia
------------------------------------------------------------------------
Trichechus manatus..........  West Indian manatee.  Endangered.
------------------------------------------------------------------------

    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 Cherry Point Study Area 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 presented in 
this assessment are derived from the Navy OPAREA Density Estimates 
(NODE) for the Southeast OPAREAs report (DoN, 2007). Quantification of 
marine mammal density and abundance was primarily accomplished by 
evaluating line-transect survey data which was collected by the NMFS 
Northeast and Southeast Fisheries Science Centers (NEFSC and SEFSC). 
The NEFSC and SEFSC are the technical centers within NMFS that are 
responsible for collecting and analyzing data to assess marine mammal 
stocks in the U.S. Atlantic Exclusive Economic Zone (EEZ). These data 
sets were analyzed and evaluated in conjunction with regional subject 
matter experts, NMFS technical staff, and scientists with the 
University of St. Andrews, Scotland, Centre for Environmental and 
Ecological Modelling (CREEM). Methods and results are detailed in NODE 
Reports covering all U.S. Atlantic coast OPAREAS as well as the Gulf of 
Mexico.
    Density estimates for cetaceans were derived in one of three ways, 
in order of preference: (1) Through spatial models using line-transect 
survey data provided by the NMFS (as discussed below); (2) using 
abundance estimates from Mullin and Fulling (2003); or (3) based on the 
cetacean abundance estimates found in the NMFS stock assessment reports 
(SAR; Waring et al., 2007), which can be viewed at http://www.nmfs.noaa.gov/pr/sars/species.htm. The following lists how density 
estimates were derived for each species:

Model-Derived Density Estimates

    Fin whale, sperm whale, beaked whales, bottlenose dolphin, Atlantic 
spotted dolphin, striped dolphin, common dolphin, Risso's dolphin, and 
pilot whales.

SAR or Literature-Derived Density Estimates

    North Atlantic right whale, humpback whale, minke whale, Kogia 
spp., rough-toothed dolphin, pantropical spotted dolphin, and Clymene 
dolphin.

Species for Which Density Estimates Are Not Available

    Blue whale, sei whale, Bryde's whale, killer whale, pygmy killer 
whale, false killer whale, melon-headed whale, spinner dolphin, 
Fraser's dolphin, harbor porpoise.
    Spatial modeling using Program DISTANCE (RUWPA), a program based on 
Buckland et al. (2001, 2004), is the primary method of density 
estimation used to produce the updated NODE reports. Together with 
appropriate line-transect survey data, this method provides the most 
accurate/up-to-date density information for marine mammals in U.S. Navy 
OPAREAs. The density estimates in this document were calculated by a 
team of experts using survey data collected and provided by the NMFS 
and with expert modeling support provided by CREEM. Researchers at 
CREEM are recognized as the international authority on density 
estimation and have been at the forefront in development of new 
techniques and analysis methods for animal density including spatial 
modeling techniques. Spatial modeling techniques have an advantage over 
traditional line-transect/distance sampling techniques in that they can 
provide relatively fine scale estimates for areas with limited or no 
available survey effort by creating models based on habitat parameters 
associated with observations from other surveys with similar spatial or 
temporal characteristics. Analysis of line-transect data in this manner 
allows for finer-scale spatial and/or temporal resolution of density 
estimates, providing indications of regions within the study area where 
higher and lower concentrations of marine mammals may occur rather than 
the traditional approach of generating a single estimate covering a 
broad spatial strata. These generic spatial strata tend to mask the 
finer scale habitat associations suggested by the specific ecology of 
an individual species.
    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 (SST), and chlorophyll a concentration was 
formulated using generalized additive models (GAMs). This relationship 
was then used to generate a two-dimensional density surface for

[[Page 11056]]

the region by predicting densities in areas where no survey data exist. 
For the Southeast, all analyses for cetaceans were based on sighting 
data collected through shipboard surveys conducted by the NMFS NEFSC 
and SEFSC between 1998 and 2005. Species-specific density estimates 
derived through spatial modeling were compared with abundance estimates 
found in the SAR (Waring et al., 2007) to ensure consistency and all 
spatial models and density estimates were reviewed by NMFS technical 
staff. For a more detailed description of the methodology involved in 
calculating the density estimates, please refer to the NODE report for 
the Southeast OPAREAs (DoN, 2007a).

Potential Impacts to Marine Mammal Species

    The Navy considers that explosions associated with MISSILEX, FIREX 
with IMPASS, and MINEX 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 effect to marine mammals.

Vessel Strikes

    Collisions with commercial and Navy ships can result in serious 
injury and may occasionally cause fatalities to cetaceans and manatees. 
Although the most vulnerable marine mammals may be assumed to be slow-
moving cetaceans or those that spend extended periods of time at the 
surface in order to restore oxygen levels within their tissues after 
deep dives (e.g., sperm whale), fin whales are actually struck most 
frequently (Laist et al., 2001). Manatees are also particularly 
susceptible to vessel interactions and collisions with watercraft 
constitute the leading cause of mortality (USFWS, 2007). Smaller marine 
mammals such as bottlenose and Atlantic spotted dolphins move more 
quickly throughout the water column and are often seen riding the bow 
wave of large ships. Marine mammal responses to vessels may include 
avoidance and changes in dive pattern (NRC, 2003).
    After reviewing historical records and computerized stranding 
databases for evidence of ship strikes involving baleen and sperm 
whales, Laist et al. (2001) found that accounts of large whale ship 
strikes involving motorized boats in the area date back to at least the 
late 1800s. Ship collisions remained infrequent until the 1950s, after 
which point they increased. Laist et al. (2001) report that both the 
number and speed of motorized vessels have increased over time for 
trans-Atlantic passenger services, which transit through the area. They 
concluded that most strikes occur over or near the continental shelf, 
that ship strikes likely have a negligible effect on the status of most 
whale populations, but that for small populations or segments of 
populations the impact of ship strikes may be significant.
    Although ship strikes may result in the mortality of a limited 
number of whales within a population or stock, Laist et al. (2001) also 
concluded that, when considered in combination with other human-related 
mortalities in the area (e.g., entanglement in fishing gear), these 
ship strikes may present a concern for whale populations.
    Of 11 species known to be hit by ships, fin whales are struck most 
frequently; 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. This could 
make them exceptionally vulnerable to ship strikes. Berzin (1972) noted 
that there were ``many'' reports of sperm whales of different age 
classes being struck by vessels, including passenger ships and tug 
boats. There were also instances in which sperm whales approached 
vessels too closely and were cut by the propellers (NMFS, 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). Although NMFS' ship strike rule does not apply to 
the Navy's activities, the Navy developed its own ship strike avoidance 
measures to reduce the probability of ship strikes. 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.
    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

[[Page 11057]]

animals. Some of these assessments can be numerically based (e.g., 
temporary threshold shift [TTS] of hearing sensitivity, permanent 
threshold shift [PTS] of hearing sensitivity, perception). Others will 
be necessarily qualitative, due to 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 that could result in PTS. Auditory 
trauma is always assumed to result in a stress response.
    Auditory fatigue refers to a loss of hearing sensitivity after 
sound stimulation. The loss of sensitivity persists after, sometimes 
long after, the cessation of the sound. The mechanisms responsible for 
auditory fatigue differ from auditory trauma and would primarily 
consist of metabolic exhaustion of the hair cells and cochlear tissues. 
The features of the exposure (e.g., amplitude, frequency, duration, 
temporal pattern) and the individual animal's susceptibility would 
determine the severity of fatigue and whether the effects were 
temporary (TTS) or permanent (PTS). Auditory fatigue (PTS or TTS) is 
always assumed to result in a stress response.
    Sounds with sufficient amplitude and duration to be detected among 
the background ambient noise are considered to be perceived. This 
category includes sounds from the threshold of audibility through the 
normal dynamic range of hearing (i.e., not capable of producing 
fatigue).
    To determine whether an animal perceives the sound, the received 
level, frequency, and duration of the sound are compared to what is 
known of the species' hearing sensitivity.
    Since audible sounds may interfere with an animal's ability to 
detect other sounds at the same time, perceived sounds have the 
potential to result in auditory masking. Unlike auditory fatigue, which 
always results in a stress response because the sensory tissues are 
being stimulated beyond their normal physiological range, masking may 
or may not result in a stress response, depending on the degree and 
duration of the masking effect. Masking may also result in a unique 
circumstance where an animal's ability to detect other sounds is 
compromised without the animal's knowledge. This could conceivably 
result in sensory impairment and subsequent behavior change; in this 
case, the change in behavior is the lack of a response that would 
normally be made if sensory impairment did not occur. For this reason, 
masking also may lead directly to behavior change without first causing 
a stress response.
    The features of perceived sound (e.g., amplitude, duration, 
temporal pattern) are also used to judge whether the sound exposure is 
capable of producing a stress response. Factors to consider in this 
decision include the probability of the animal being na[iuml]ve or 
experienced with the sound (i.e., what are the known/unknown 
consequences of the exposure).
    If the received level is not of sufficient amplitude, frequency, 
and duration to be perceptible by the animal, by extension, this does 
not result in a stress response (not perceived). Potential impacts to 
tissues other than those related to the auditory system are assessed by 
considering the characteristics of the sound (e.g., amplitude, 
frequency, duration) and the known or estimated response 
characteristics of non-auditory tissues. Some of these assessments can 
be numerically based (e.g., exposure required for rectified diffusion). 
Others will be necessarily qualitative, due to lack of information. 
Each of the potential responses may or may not result in a stress 
response.
    Direct tissue effects--Direct tissue responses to sound stimulation 
may range from tissue shearing (injury) to mechanical vibration with no 
resulting injury.
    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 non-auditory 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

[[Page 11058]]

history events (e.g., pregnancy) and predictable environmental 
conditions (e.g., seasonal changes). The allostatic load is the 
cumulative cost of allostasis incurred by an animal and is generally 
characterized with respect to an animal's energetic expenditure. 
Perturbations to an animal that may occur with the presence of a 
stressor, either biological (e.g., predator) or anthropogenic (e.g., 
construction), can contribute to the allostatic load (Wingfield, 2003). 
Additional costs are cumulative and additions to the allostatic load 
over time may contribute to reductions in the probability of achieving 
ultimate life history functions (e.g., survival, maturation, 
reproductive effort and success) by producing pathophysiological states 
(the conditions of 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 assume that the exposure does not contribute to the 
allostatic load. Additionally, without a stress response or auditory 
masking, it is assumed that there can be no behavioral change. 
Conversely, any immediate effect of exposure that produces an injury is 
assumed to also produce a stress response and contribute to the 
allostatic load.
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.
    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 disruption to a natural behavioral pattern (e.g., 
breeding or nursing) 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

[[Page 11059]]

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 above). Sound-
related trauma can be lethal or sublethal. Lethal impacts are those 
that result in immediate death or serious debilitation in or near an 
intense source and are not, technically, pure acoustic trauma (Ketten, 
1995). Sublethal impacts include hearing loss, which is caused by 
exposures to perceptible sounds. Severe damage (from the shock wave) to 
the ears includes tympanic membrane rupture, fracture of the ossicles, 
damage to the cochlea, hemorrhage, and cerebrospinal fluid leakage into 
the middle ear. Moderate injury implies partial hearing loss due to 
tympanic membrane rupture and blood in the middle ear. Permanent 
hearing loss also can occur when the hair cells are damaged by one very 
loud event, as well as by prolonged exposure to a loud noise or chronic 
exposure to noise. The level of impact from blasts depends on both an 
animal's location and, at outer zones, on its sensitivity to the 
residual noise (Ketten, 1995).
    The exercises that use explosives in this request include: FIREX 
with IMPASS, MISSILEX, and MINEX. Table 5 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 6 Hellfire 
events per year that can take place in sub-areas 16 and 17 during any 
season, so there are 1.5 events modeled for each season.

                                        Table 5--Number of Explosive Events Within the Cherry Point Range Complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Annual
                   Sub-area *                                 Ordnance                  Winter        Spring        Summer         Fall         totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 MISSILEX..........................  ............  ............  ............  ............           22
16 & 17........................................  Hellfire..........................          1.5           1.5           1.5           1.5   ...........
16 & 17........................................  TOW...............................          2             2             2             2     ...........
                                                 FIREX with IMPASS.................  ............  ............  ............  ............            2
13 & 14........................................  5 rounds...............           .25           .25           .25           .25  ...........
4 & 5..........................................  5 rounds...............           .25           .25           .25           .25  ...........
                                                 MINEX.............................  ............  ............  ............  ............           20
UNDET..........................................  20 LB.............................          5             5             5             5     ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Figure 1 of the LOA application for the location of sub-areas.

Definition of Harassment

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].
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 affect 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

[[Page 11060]]

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 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, 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 uses an 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.

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 
to the Air Force by NMFS (NMFS, 2005c).
I.1. Thresholds and Criteria for Injurious Physiological Impacts
I.1.a. Single Explosion
    For injury, NMFS 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\-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, NMFS 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 NMFS' 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

[[Page 11061]]

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 harassment. 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 (Level B 
behavioral harassment without onset of TTS) are not expected 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 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 (<1,500 lb NEW), as 
what was modeled for this analysis, the spectrum of the shot arrival is 
broad, and there is essentially no difference in impact ranges for 
whales. However, the TTS pressure criteria (23 psi) impact range for 
FIREX with IMPASS can, especially in deeper water, result in a longer 
impact range than the behavioral disturbance (without TTS) criteria 
impact range.
II. Summary of Thresholds and Criteria for Impulsive Sounds
    Table 6 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 6--Effects, Criteria, and Thresholds for Impulsive Sounds
----------------------------------------------------------------------------------------------------------------
             Effect                   Criteria             Metric             Threshold             Effect
----------------------------------------------------------------------------------------------------------------
Mortality......................  Onset of Extensive  Goertner modified   indexed to 30.5     Mortality.
                                  Lung Injury.        positive impulse.   psi-msec (assumes
                                                                          100 percent small
                                                                          animal at 26.9
                                                                          lbs).
Injurious Physiological........  50% Tympanic        Energy flux         1.17 in-lb/in\2\    Level A.
                                  Membrane Rupture.   density.            (about 205 dB re
                                                                          1 microPa\2\-sec).
Injurious Physiological........  Onset Slight Lung   Goertner modified   indexed to 13 psi-  Level A.
                                  Injury.             positive impulse.   msec (assumes 100
                                                                          percent small
                                                                          animal at 26.9
                                                                          lbs).
Non-injurious Physiological....  TTS...............  Greatest energy     182 dB re 1         Level B.
                                                      flux density        microPa\2\-sec.
                                                      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 Physiological....  TTS...............  Peak pressure over  23 psi............  Level B.
                                                      all exposures.

[[Page 11062]]

 
Non-injurious Behavioral.......  Multiple            Greatest energy     177 dB re 1         Level B.
                                  Explosions          flux density        microPa\2\-sec.
                                  Without 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 11. Additional information regarding the 
derivation of these criteria is available in the Navy's FEIS for the 
Cherry Point Range Complex and in the Navy's CHURCHILL FEIS (U.S. 
Department of the Navy, 2001).

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 summarized for each major type of exercise. A more in-depth effects 
analysis is in Appendix A of the LOA application 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
----------------------------------------------------------------------------------------------------------------
                                                                                                Estimated ZOI  @
                                                Estimated ZOI @ 177 dB re 1   Estimated ZOI  @     205 dB re 1
                   Area *                         [mu]Pa\2\-sec (multiple          23 psi       [mu]Pa\2\-sec or
                                                     detonations only)                               13 psi
----------------------------------------------------------------------------------------------------------------
4 & 5.......................................  NA **.........................            3.7387           0.18522
13 & 14.....................................  NA **.........................            3.7387           0.18522
----------------------------------------------------------------------------------------------------------------
* Please see Figure 1 of the LOA application for the locations of these areas.
** In this area, which occurs in deeper water, the 23 psi criteria dominates over the 177 dB re 1 microPa\2\-sec
  behavioral disturbance criteria and therefore was used in the analysis.

    The ZOI, when multiplied by the animal densities and the total 
number of events (Table 5), provides the exposure estimates for that 
animal species for the nominal exercise case of 39 5-in explosive 
rounds. The potential effects would occur within a series of small 
impact areas associated with the pre-calibration rounds and missions 
spread out over a period of several hours. Additionally, target 
locations are changed from event to event and because of the time lag 
between events, it is highly unlikely, even if a marine mammal were 
present (not accounting for mitigation), that the marine mammal would 
be within the small exposure zone for more than one event.
    FIREX with IMPASS is restricted to two locations in the Cherry 
Point Range Complex. In addition to other mitigation measures, 
dedicated lookouts would be onboard the ship monitoring 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. 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

[[Page 11063]]

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 one area (UNDET Area, 
Onslow Bay) (Figure 1 of the LOA application), observers would survey 
the target area for marine mammals 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                --------------------------------
                                                    20-lb shot
------------------------------------------------------------------------
Level A ZOI @ 13 psi...................  0.13 km\2\  10%
Level B ZOI @ 182 dB re 1 microPa\2\-    0.8 km\2\  25%
 sec.
------------------------------------------------------------------------

3. MISSILEX (Hellfire and TOW)
    Modeling was completed for three explosive missiles involved in 
MISSILEX: each assumed detonation at 1-m (3.3 ft) depth. The NEW used 
in simulations of the Hellfire and TOW missiles are 8 lbs and 15.33 
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 5), 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. 
Ships will not fire on the target until the area is clear of marine 
mammals, and will suspend the exercise if any enter the buffer area. 
Implementation of mitigation measures like these reduce the likelihood 
of exposure and potential effects in the ZOI.

                                                      Table 9--Estimated ZOIs (km\2\) for MISSILEX
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Estimated ZOI @ 182 dB re 1     Estimated ZOI @ 205 dB re 1      Estimated ZOI  @ 30.5 psi
                                                               microPa2-s or 23 psi            microPa2-s or 13 psi      -------------------------------
               Area                       Ordnance       ----------------------------------------------------------------
                                                            Win     Spr     Sum    Fall     Win     Spr     Sum    Fall     Win     Spr     Sum    Fall
--------------------------------------------------------------------------------------------------------------------------------------------------------
16 & 17...........................  Hellfire............    0.31    0.31    0.31    0.31    0.04    0.04    0.04    0.04   <0.01   <0.01   <0.01   <0.01
16 & 17...........................  TOW.................    0.39    0.39    0.35    0.39    0.04    0.04    0.04    0.04   <0.01   <0.01   <0.01   <0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------

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), and 
underwater detonations associated with Mine Neutralization training 
(MINEX). Explosive ordnance use is limited to specific training areas.
    An explosives analysis was conducted to estimate the number of 
marine mammals that could be exposed to impacts from explosions by the 
Navy. Table 10 provides a summary of the explosive modeling analysis 
conducted by the Navy. Fin, humpback whales, and sperm whales will have 
high detection rates at the surface because of their large body size 
and pronounced blows. Because of large group sizes, it is likely that 
lookouts would detect Atlantic spotted dolphins, bottlenose dolphins, 
Clymene dolphins, common dolphins, pantropical spotted dolphins, 
Risso's dolphins, rough-toothed dolphins, and striped dolphins.
    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, and harbor porpoise) because density estimates could 
not be calculated due to the limited available data for these species. 
Lack of density estimates reflect the paucity of sighting data for 
these species in the Study Area. It is assumed that fewer or no 
sightings result from low numbers of animals in the area. Consequently, 
because these species' presence in the Study Area is rare, NMFS does 
not expect these animals to be exposed to explosive ordnance. 
Implementation of mitigation measures will reduce the likelihood of 
exposure

[[Page 11064]]

and potential effects should any of these species occur in the OPAREA.
    Although exposure of marine mammals based on the Navy's modeling 
shows that only two individuals of Atlantic spotted dolphins would be 
taken by Level B behavioral harassment, because of the relatively high 
abundance of several other species (Atlantic spotted dolphins, 
bottlenose dolphins, common dolphins, striped dolphins, and Risso's 
dolphins) in the proposed action area (Waring et al., 2008) and their 
aggregation in large groups, NMFS considers that additional takes of 
these five species by Level B behavioral harassment are possible. 
Therefore, NMFS proposes to authorize additional takes for these 
species (see Take Calculations section below).

  Table 10--Summary of Potential Exposures From Explosive Ordnance (per Year) for Marine Mammals in the Cherry
                                    Point Range Complex by the Navy Modeling
----------------------------------------------------------------------------------------------------------------
                                          Potential
                                       exposures @ 177       Potential          Potential          Potential
     Species/training operation       dB re 1 microPa2-   exposures @ 182    exposures @ 205    exposures @ 30.5
                                         s (multiple     dB re 1 microPa2-  dB re 1 microPa2-         psi
                                      detonations only)     s or 23 psi        s or 13 psi
----------------------------------------------------------------------------------------------------------------
Fin whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Humpback whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
North Atlantic right whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Sperm whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Atlantic Spotted dolphin:
    MISSILEX training...............                 NA                  1                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  1                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  2                  0                  0
Beaked whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Bottlenose dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Clymene dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Common dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Kogia spp.:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------

[[Page 11065]]

 
        Total Exposures.............                  0                  0                  0                  0
Minke whale:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Pantropical spotted dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Pilot whales:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Risso's dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Rough-toothed dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
Striped dolphin:
    MISSILEX training...............                 NA                  0                  0                  0
    FIREX training..................                  0                 NA                  0                  0
    MINEX training..................                 NA                  0                  0                  0
                                     ---------------------------------------------------------------------------
        Total Exposures.............                  0                  0                  0                  0
----------------------------------------------------------------------------------------------------------------
Note: Events were either modeled for 177 dB re 1 microPa\2\-sec due to multiple detonations (FIREX with IMPASS)
  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.

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 the modeling conducted by the Navy, marine mammals that 
could be potentially exposed to explosive ordnance as a result of the 
Cherry Point Range Complex training activities would be limited to 
Level B behavioral harassment, specifically, two individuals of 
Atlantic spotted dolphins.
    Though the Navy's model has shown that it is unlikely more than two 
individuals of Atlantic spotted dolphins would be affected by the 
proposed Range Complex training activities, a further analysis by NMFS 
revealed that additional species may be taken by the Navy's exercises. 
For example, due to the higher abundances of Atlantic spotted, 
bottlenose, common, striped, and Risso's dolphins in the Cherry Point 
Range Complex Study Area, and the fact

[[Page 11066]]

that these species tend to congregate in relatively large groups, there 
is an increased chance they too, may be taken by the Navy's exercises 
if not detected in advance by Navy watchstanders or lookouts. 
Therefore, NMFS proposes to authorize take, by Level B harassment of 
these species incidental to the Navy's Cherry Point Range Complex 
training exercises. NMFS preliminarily concludes that takes due to 
explosive ordnance and underwater detonations could result in short-
term behavioral harassment of a limited number (i.e., 20 takes each) of 
Atlantic spotted, bottlenose, common, striped, and Risso's dolphins 
annually. There would be no mortality or injury to these marine mammal 
species; therefore, the proposed Navy training activities would not 
affect the annual rates of recruitment or survival of these species, or 
affect the population levels of these species. Moreover, take by Level 
B behavioral harassment of 20 individuals of each of these species per 
year would likewise have no effect on annual rates or recruitment or 
survival or affect their population levels. The population levels of 
each of these species are healthy and short-term behavioral harassment 
would result in minor effects, if any, to the individuals and would 
have no lasting effect on the species (Waring et al., 2008). The 
mitigation measures presented below would further reduce the potential 
for exposures.

Proposed Mitigation Measures

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The National Defense 
Authorization Act (NDAA) of 2004 amended the MMPA as it relates to 
military-readiness activities and the incidental take authorization 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity.'' The 
training activities described in the Cherry Point Range Complex LOA 
application are considered military readiness activities.
    In addition, any mitigation measure prescribed by NMFS should be 
known to accomplish, have a reasonable likelihood of accomplishing 
(based on current science), or contribute to the accomplishment of one 
or more of the general goals listed below:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at a biologically important time or location) exposed to 
received levels of underwater detonations or other activities expected 
to result in the take of marine mammals (this goal may contribute to a, 
above, or to reducing harassment takes only).
    (c) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of underwater detonations or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing harassment takes only).
    (d) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of underwater detonations or other activities expected to result 
in the take of marine mammals (this goal may contribute to a, above, or 
to reducing the severity of harassment takes only).
    (e) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (f) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS worked with the Navy and identified potential practicable and 
effective mitigation measures, which included a careful balancing of 
the likely benefit of any particular measure to the marine mammals with 
the likely effect of that measure on personnel safety, practicality of 
implementation, and impact on the ``military-readiness activity''. 
These mitigation measures are listed below.

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 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

[[Page 11067]]

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.
II. Operating Procedures & Collision Avoidance
    1. Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order will 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    2. Commanding Officers will make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship according to 
the proposed mitigation and monitoring measures.
    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, personnel aboard naval vessels will be alert 
at all times, use extreme caution, and proceed at a ``safe speed'' (the 
minimum speed at which mission goals or safety will not be compromised) 
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 yds (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 mammal presence. 
Therefore, increased vigilance in watching for marine mammals will be 
taken where these conditions exist.
    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 described in the Navy's LOA application. 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 
training activities 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 North Atlantic 
right whale migratory seasons near ports located off the western North 
Atlantic, offshore of the eastern United States. The mitigation 
measures would apply to all Navy vessel transits, including those 
vessels that would transit to and from East Coast ports and OPAREAs. 
Seasonal migration of right whales is generally described by NMFS as 
occurring from October 15th through April 30th, when right whales 
migrate between feeding grounds farther north and calving grounds 
farther south. The Navy mitigation measures have been established in 
accordance with rolling dates identified by NMFS consistent with these 
seasonal patterns.
    NMFS has identified ports located in the western Atlantic Ocean, 
offshore of the southeastern United States, where vessel transit during 
right whale migration is of highest concern for potential ship strike. 
The ports include the Hampton Roads entrance to the Chesapeake Bay, 
which includes the concentration of Atlantic Fleet vessels in Norfolk, 
Virginia. Navy vessels are required to use extreme caution and operate 
at a slow, safe speed (the minimum speed at which mission goals or 
safety will not be compromised) consistent with mission and safety 
during the months indicated in Table 11 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

[[Page 11068]]

vessel-whale interactions along the mid-Atlantic coast, including 
transits to and from any mid-Atlantic ports not specifically identified 
above.

     Table 11--North Atlantic Right Whale Migration Port References
------------------------------------------------------------------------
                                                       Port reference
           Region                    Months                points
------------------------------------------------------------------------
South and East of Block       Sep-Oct and Mar-Apr.  37 km (20 nm)
 Island.                                             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 (Hampton       Nov-Dec and Feb-Apr.  37[deg]01.11 N,
 Roads and Baltimore).                               75[deg]57.56 W.
North Carolina..............  Dec-Apr.............  34[deg]41.54 N,
                                                     76[deg]40.20 W.
South Carolina..............  Oct-Apr.............  33[deg]11.84 N,
                                                     79[deg]08.99 W and
                                                     32[deg]43.39 N,
                                                     79[deg]48.72 W.
------------------------------------------------------------------------

Proposed Mitigation Measures for Specific At-Sea Training Events

    These measures 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)
    FIREX using IMPASS will occur in two areas in the Navy Cherry Point 
Study Area: Areas of \4/5\ & \13/14\. The locations were established to 
be far enough from shore to reduce civilian encounters (e.g., diving 
and recreational fishing). Surface ships conducting FIREX with IMPASS 
do not have strict distance from land restrictions like 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 \4/5\ and \13/14\.
    2. Pre-exercise monitoring of the target area will be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships will 
maintain lookouts dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    3. ``Big Eyes'' on the ship will be used to monitor a 640-yd (585-
m) buffer zone for marine mammals during naval-gunfire events.
    4. Ships will not fire on the target if any marine mammals are 
detected within or approaching the 640-yd (585-m) buffer zone until the 
area is clear of marine mammals. 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 
vacated the area and is heading away from the buffer zone.
    5. Post-exercise monitoring of the entire effect range will take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    6. The naval gunfire will take place during daylight hours only.
    7. The naval gunfire utilizing 5-in. rounds will only be used in 
Beaufort Sea State three or less.
    8. The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    9. No firing will occur if marine mammals are detected within 70 
yds (64 m) of the vessel.
II. Air-to-Surface Missile Exercises (Explosives)
    Marine Corps helicopters launch their Hellfire and TOW missiles in 
Air 16 and 17 of W-122 in the Navy Cherry Point Study Area. These sub-
areas are far enough from shore to reduce civilian encounters (e.g., 
diving and recreational fishing), while remaining within 60 nm of 
shore-based facilities, close enough so a helicopter can complete its 
training mission before needing to return for refueling.
    The following measures will be implemented:
    1. This activity will only occur in Air 16 and 17 of W-122 for 
Hellfire and TOW missile launches.
    2. Before launching a missile, participant 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 (the minimum speed 
at which mission goals or safety will not be compromised). The aircrew 
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. 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. This activity will only occur in the UNDET area of Onslow Bay.
    2. Observers will survey the ZOI, a 656-yd (600-m) radius from 
detonation location, for marine mammals from all participating vessels 
during the entire operation. A survey of the ZOI (minimum of 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.
    3. Detonation operations will be conducted during daylight hours.
    4. If a marine mammal is sighted within the ZOI, the animal will be 
allowed to leave of its own volition. The Navy will suspend detonation 
exercises and ensure the area is clear for a full 30 minutes prior to 
detonation.
    5. Divers placing the charges on mines and dive support vessel 
personnel will survey the area for marine mammals and will report any 
sightings to the surface observers. These animals will be allowed to 
leave of their own volition and the ZOI will be clear for 30 minutes 
prior to detonation.
    6. No detonations will take place within 3.2 nm (6 km) of an 
estuarine inlet (Bogue, Bear, Browns, New River, Inlets).
    7. No detonations will take place within 1.6 nm (3 km) of 
shoreline.

[[Page 11069]]

    8. No detonations will take place within 0.5 nm (1 km) of any 
artificial reef, shipwreck, or live hard-bottom community.
    9. Personnel will record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.

Adaptive Management

    NMFS proposes to include an adaptive management component in the 
final regulations governing the take of marine mammals incidental to 
Navy training exercises in the Cherry Point Range Complex. The use of 
adaptive management will provide NMFS the ability to consider new data 
from different sources to determine (in coordination with the Navy), on 
an annual basis (or earlier, as warranted), 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 the Cherry Point Range Complex 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)
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    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

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    a. An increase in the probability of detecting marine mammals, both 
within the safety zone (thus allowing for more effective implementation 
of the mitigation) and in general to generate more data to contribute 
to the effects analyses.
    b. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of explosives or other stimuli that we 
associate with specific adverse effects, such as behavioral harassment, 
TTS, or PTS.
    c. An increase in our understanding of how marine mammals respond 
(behaviorally or physiologically) to explosives or other stimuli 
expected to result in take and how anticipated adverse effects on 
individuals (in different ways and to varying degrees) may impact the 
population, species, or stock (specifically through effects on annual 
rates of recruitment or survival).
    d. An increased knowledge of the affected species.
    e. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.
    f. A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.
    The Navy would be required to cooperate with the NMFS when 
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 Cherry Point Range Complex include a combination of individual 
elements designed to allow a comprehensive assessment include:
    1. Vessel and aerial surveys.
    i. Visual surveillance of 1 event per year. If possible, the event 
surveyed will be one involving multiple detonations. Due to the limited 
number of events conducted in the Cherry Point Range Complex, there is 
a potential that it may be impossible to coordinate required surveys to 
take place during the limited opportunities presented. In any case, any 
missed annual survey requirement will roll into the subsequent year 
ensuring that the appropriate number of surveys occur over the 5-year 
regulations. Likewise, additional surveys may be scheduled in any year 
where additional opportunities arise, with the number of surveys during 
the 5-year regulations not to exceed 5.
    ii. For surveyed training events, aerial or vessel surveys will be 
used 1-2 days prior to, during (if safe to do so), 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 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). The survey shall be 
conducted using a towed array behind the survey vessel in transect 
lines or grid in the predetermined area outside the exclusion zone and 
should be conducted in a manner that ensures the entire circumference 
of the exclusion zone can be observed. 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;

[[Page 11070]]

    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 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 may also 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; instead, Navy lookouts 
will continue to serve as the primary reporting means within the Navy 
chain of command for marine mammal sightings. The only exception is 
that if an animal is observed within the shutdown zone that has not 
been observed by the lookout, the MMO will inform the lookout of the 
sighting for the lookout to take the appropriate action through the 
chain of command.
    vi. The MMOs will collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings will be conducted according to a standard 
operating procedure.
    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.
    The Cherry Point 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 
February 1, 2013. This report will be submitted to NMFS at the end of 
the fourth year of the rule (May 2013).
    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

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of affecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (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); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities that 
would be affected in the Cherry Point Range Complex, so this 
determination is inapplicable for this rulemaking); and (4) to 
prescribe requirements pertaining to monitoring and reporting.
    In the Assessment of Marine Mammal Response to Anthropogenic Sound 
section, NMFS' analysis identified the lethal responses, physical 
trauma, sensory impairment (permanent and temporary threshold shifts 
and acoustic masking), physiological responses (particular stress 
responses), and behavioral responses that could potentially result from 
explosive ordnance exposures. 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 
Cherry Point Range Complex.

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;

[[Page 11071]]

    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 determine 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 a negligible impact on marine mammal species or 
stocks.
    Starting with a sound source, the attenuation of an emitted sound 
due to propagation loss is determined. Uniform animal distribution is 
overlaid onto the calculated sound fields to assess if animals are 
physically present at sufficient received sound levels to be considered 
``exposed'' to the sound. If the animal is determined to be exposed, 
two possible scenarios must be considered with respect to the animal's 
physiology--effects on the auditory system and effects on non-auditory 
system tissues. These are not independent pathways and both must be 
considered since the same sound could affect both auditory and non-
auditory tissues. Note that the model does not account for any animal 
response; rather the animals are considered stationary, accumulating 
energy until the threshold is tripped.
    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). Nevertheless, based on the modeling results, only two 
individuals of Atlantic spotted dolphins would be taken by Level B 
behavioral harassment as a result of the Navy training activities in 
the Cherry Point Range Complex. In addition, NMFS does not believe that 
there would be any mortality of any marine mammal resulting from the 
proposed training activities due to the sparse training activities and 
the implementation of mitigation and monitoring measures described 
above. Therefore, mortality of marine mammals would not be authorized. 
With the mitigation and monitoring measures implemented, the estimated 
take could be further reduced.
    Although exposure of marine mammals based on the Navy's modeling 
shows that only two individuals of Atlantic spotted dolphins would be 
taken by Level B behavioral harassment, because of the relatively high 
abundance of several species (Atlantic spotted dolphins, bottlenose 
dolphins, common dolphins, striped dolphins, and Risso's dolphins) in 
the proposed action area (Waring et al., 2008) and their aggregation in 
relatively large groups, NMFS considers that additional takes of these 
five species by Level B behavioral harassment are possible. Therefore, 
NMFS proposes to authorize the take of 20 individuals annually from 
each species over the course of the 5-year regulations.

Effects on Marine Mammal Habitat

    Activities from Atlantic Fleet training activities in the Cherry 
Point 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. 
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. There is no critical habitat 
within the Cherry Point Range Complex.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes, alone, is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, NMFS must consider other factors, such as the likely nature 
of any responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), or 
any of the other variables mentioned in the first paragraph (if known), 
as well as the number and nature of estimated Level A takes, the number 
of estimated mortalities, and effects on habitat.
    Based on the analyses of the potential impacts from the proposed 
Navy Cherry Point Range Complex training activities contained herein, 
NMFS has preliminarily determined that the issuance of 5-year 
regulations and annual LOAs is appropriate for Navy training exercises 
utilizing underwater detonations and will have a negligible impact on 
the marine mammal species and stocks present in the Cherry Point Range 
Complex.

Subsistence Harvest of Marine Mammals

    NMFS has preliminarily determined that the issuance of an LOA for 
Navy training exercises in the Cherry Point 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 six ESA-listed marine mammal species that are listed as 
endangered under the ESA with confirmed or possible occurrence in the 
Cherry Point 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 Cherry Point 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 Cherry Point Range Complex training activities. A draft 
EIS was released for public comments from September 13-October 27, 2008 
and it is

[[Page 11072]]

available at http://www.NavyCherryPointRangeComplexEIS.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 Cherry Point Range Complex. If 
the Navy's FEIS is not adequate, NMFS will 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 Cherry Point 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
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. The Regulatory Flexibility Act 
requires Federal agencies to prepare an analysis of a rule's impact on 
small entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. Section 605(b), that the action will not have a significant 
economic impact on a substantial number of small entities. The Navy is 
the entity that will be affected by this rulemaking, not a small 
governmental jurisdiction, small organization or small business, as 
defined by the Regulatory Flexibility Act. This rulemaking authorizes 
the take of marine mammals incidental to a specified activity. The 
specified activity defined in the proposed rule includes the use of 
underwater detonations during training activities that are only 
conducted by the U.S. Navy. Additionally, the proposed regulations are 
specifically written for ``military readiness'' activities, as defined 
by the NDAA, which means they cannot apply to small businesses. 
Consequently, 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. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.

    Dated: March 9, 2009.
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 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 C is added to part 218 to read as follows:

Subpart C--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Cherry Point Range Complex

Sec.
218.20 Specified activity and specified geographical region.
218.21 Permissible methods of taking.
218.22 Prohibitions.
218.23 Mitigation.
218.24 Requirements for monitoring and reporting.
218.25 Applications for Letters of Authorization.
218.26 Letters of Authorization.
218.27 Renewal of Letters of Authorization.
218.28 Modifications to Letters of Authorization.

Subpart C--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Cherry Point Range Complex


Sec.  218.20   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 Cherry Point Range Complex, which is located along 
the southern east coast of the U.S., as stated in the Navy's letter of 
authorization application. The coordinates of the Cherry Point Range 
Complex Study Area are: 35[deg]30' N, 75[deg]25' W; 34[deg]14' N, 
73[deg]57' W; 32[deg]12' N, 76[deg]49' W; 32[deg]20' N, 77[deg]20' W; 
33[deg]10' N, 77[deg]31' W; and 34[deg]23'30'' N, 77[deg]30' W; then 
along the 3 nm from and parallel to the shoreline.
    (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 
paragraph (c)(1)(i) of this section conducted as part of the training 
exercises indicated in paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) Tube-launched Optically tracked Wire-guided (TOW) missile;
    (C) Mine Neutralization (20 lb NEW charges); and
    (D) 5'' Naval Gunfire.
    (ii) Training Exercises:
    (A) Mine Neutralization (20 lb NEW charges)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire 
missile)--up to 40 exercises over the course of 5 years (an average of 
8 per year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; TOW)--up to 40 
exercises over the course of 5 years (an average of 8 per year); and
    (D) FIREX with IMPASS--up to 10 exercises over the course of 5 
years (an average of 2 per year).
    (2) [Reserved].


Sec.  218.21  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.26, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.20(b), provided the activity is in 
compliance with all terms, conditions, and

[[Page 11073]]

requirements of this Subpart and the appropriate Letter of 
Authorization.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  218.20(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment (annual estimates):
    (A) Atlantic spotted dolphin (Stenella frontalis)--22;
    (B) Striped dolphin (S. coeruleoalba)--20;
    (C) Bottlenose dolphin (Tursiops truncatus)--20;
    (D) Common dolphin (Delphinus delphis)--20; and
    (E) Risso's dolphin (Grampus griseus)--20.
    (2) [Reserved].


Sec.  218.22   Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.21 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 and 
218.26, no person in connection with the activities described in Sec.  
218.20 may:
    (a) Take any marine mammal not specified in Sec.  218.21(b);
    (b) Take any marine mammal specified in Sec.  218.21(b) other than 
by incidental take as specified in Sec.  218.21(b)(1) and (2);
    (c) Take a marine mammal specified in Sec.  218.21(b) 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. Sec.  216.106 and 218.26.


Sec.  218.23   Mitigation.

    (a) When conducting training activities identified in Sec.  
218.20(c), the mitigation measures contained in this subpart and 
subsequent Letters of Authorization issued under Sec. Sec.  216.106 and 
218.26 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures: (i) Personnel Training--Lookouts;
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews 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 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.
    (ii) Operating Procedures & 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'' (the minimum speed 
at which mission goals or safety will not be compromised) 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 marine mammals 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.
    (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 under Sec.  218.20. 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 training 
activities 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.

[[Page 11074]]

    (3) Mitigation Measures Applicable Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: (i) Mid-Atlantic, 
Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and 
operate at a slow, safe speed consistent with mission and safety during 
the months indicated below and within a 37 km (20 nm) arc (except as 
noted) of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49 [deg]N. lat. 071-51.15 [deg]W. long. and 41-18.58 
[deg]N. lat. 070-50.23 [deg]W. long): Sept-Oct and Mar-Apr
    (2) New York/New Jersey (40-30.64 [deg]N. lat. 073-57.76 [deg]W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13 [deg]N. lat. 075-1.93 
[deg]W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11 [deg]N. 
lat. 075-57.56 [deg]W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54 [deg]N. lat. 076-40.20 [deg]W. long.): 
Dec-Apr
    (6) South Carolina (33-11.84 [deg]N. lat. 079-8.99 [deg]W. long. 
and 32-43.39 [deg]N. lat. 079-48.72 [deg]W. long.): Oct-Apr
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall 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 in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT 
training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraph (a)(3)(ii)(A) and (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15 [deg]N. lat. to 30-15 [deg]N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00 [deg]N. lat. to 30-15 [deg]N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15--April 15 and also apply to an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting 
and other information needed to make informed decisions regarding safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) and path of intended movement. Subs shall contact 
Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a 
slow safe speed. The speed shall be the slowest safe speed that is 
consistent with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. 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 safely keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to 
a person, vessel, or aircraft, and to the extent vessels are restricted 
in the ability to maneuver.
    (4) Ships shall not transit through the critical habitat or 
associated area of concern in a North-South direction.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, 
Jacksonville, by the quickest and most practicable means. The sighting 
report shall include the time, latitude/longitude, direction of 
movement and number and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission 
goals or safety will not be compromised). The Great South Channel 
critical habitat is defined by the following coordinates: 41-00 [deg]N. 
lat., 69-05 [deg]W. long.; 41-45 [deg]N. lat, 69-45 [deg]W. long; 42-10 
[deg]N. lat., 68-31 [deg]W. long.; 41-38 [deg]N. lat., 68-13 [deg]W. 
long. The Cape Cod Bay critical habitat is defined by the following 
coordinates: 42-04.8 [deg]N. lat., 70-10 [deg]W. long.; 42-12 [deg]N. 
lat., 70-15 [deg]W. long.; 42-12 [deg]N. lat., 70-30 [deg]W. long.; 41-
46.8 [deg]N. lat., 70-30 [deg]W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to the Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted 
in the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be

[[Page 11075]]

able to avoid collisions with North Atlantic right whales and other 
marine mammals, and stop within a distance appropriate to the 
circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional 
speed reductions as per Rule 6 of International Navigational Rules.
    (4) Proposed Mitigation Measures for Specific At-Sea Training 
Events: (i) Firing Exercise (FIREX) Using the Integrated Maritime 
Portable Acoustic Scoring System (IMPASS) (5-in Explosive Rounds)
    (A) This activity shall only occur in Areas 4/5 and 13/14.
    (B) 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 lookouts dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 640-yd 
(585-m) buffer zone for marine mammals during naval-gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 640-yd (585-m) buffer zone. If 
marine mammals are present, operations must be suspended. Visual 
observation shall occur for approximately 45 min, or until the animal 
has been observed to have cleared the area and is heading away from the 
buffer zone. At such time as animals have cleared the area and are 
heading away from the buffer zone, the Navy may begin or resume 
operations.
    (E) Post-exercise monitoring of the entire effect range shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) The naval gunfire shall take place during daylight hours only.
    (G) The naval gunfire utilizing 5-in. rounds shall only be used in 
Beaufort Sea State three or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) This activity shall only occur in Air 16 and 17 of W-122 for 
Hellfire and TOW missile launches.
    (B) Before launching a missile, participant aircraft shall visually 
survey the target area for marine mammals. 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. The aircrew 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 shall only occur in the UNDET area of 
Onslow Bay.
    (B) Observers shall survey the ZOI, a 656-yd (600-m) radius from 
detonation location, for marine mammals from all participating vessels 
during the entire operation. A survey of the ZOI (minimum of three 
parallel tracklines 219 yd [200 m] apart) using support craft shall be 
conducted at the detonation location 30 minutes prior through 30 
minutes post detonation.
    (C) Detonation operations shall be conducted during daylight hours.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear for a full 30 minutes 
prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear for 30 min prior 
to detonation.
    (F) Personnel shall record any protected species observations 
during the exercise as well as measures taken if species are detected 
within the ZOI.


Sec.  218.24   Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 218.26 for activities described in Sec.  
218.20(c) is required to cooperate with the NMFS when 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.  218.20(c) is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified or authorized in Sec.  218.21(b).
    (c) The Holder of the Letter of Authorization must conduct all 
monitoring and/or research required under the Letter of Authorization.
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be 
convened in 2011 and how and when Navy/NMFS will subsequently utilize 
the findings of the Monitoring Workshop to potentially modify 
subsequent monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for Cherry Point 
Range Complex and across Range Complexes.
    (e) The Holder of the Letter of Authorization shall, when 
conducting training events in the Cherry Point Range Complex, implement 
the following monitoring methods:
    (1) Vessel and aerial surveys:
    (i) Visual surveillance of 1 event per year. The event surveyed 
shall be one involving multiple detonations. If it is impossible to 
conduct the required surveys due to lack of training exercises, the 
missed annual survey requirement shall roll into the subsequent year to 
ensure that the appropriate number of surveys (i.e., total of 5) occurs 
over the 5-year period of effectiveness of this subpart.
    (ii) For surveyed training events, aerial or vessel surveys shall 
be used 1-2 days prior to, during (if safe to do so), and 1-5 days post 
detonation.
    (iii) Survey effort shall focus on any specified exclusion zone 
around a particular detonation point plus 2,000 yards beyond the border 
of the exclusion zone (i.e., the circumference of the area from the 
border of the exclusion zone extending 2,000 yards outwards). The 
survey shall be conducted using a towed array behind the survey vessel 
in transect lines or grid in the predetermined area outside the 
exclusion zone.
    (iv) When conducting a particular survey, the survey team shall 
collect:

[[Page 11076]]

    (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: 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.
    (3) Marine mammal observers on Navy platforms.
    (i) Marine mammal observers (MMOs) shall be placed on a Navy 
platform during the exercises.
    (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.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities 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.
    (f) Monitoring Report--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 Sec. 218.24(e).
    (g) Cherry Point 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.  218.24(e). 
This report will be submitted at the end of the fourth year of the rule 
(May 2013), covering activities that have occurred through February 1, 
2013.
    (h) The Navy shall respond to NMFS's 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's 
comments, or three months after the submittal of the draft if NMFS does 
not comment by then.
    (i) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.


Sec.  218.25   Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  218.20(c) (the U.S. Navy) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec.  
218.26 or a renewal under Sec.  218.27.


Sec.  218.26   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.  218.27.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  218.27   Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.26 for the activity identified in Sec.  218.20(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.25 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.  
218.24(b); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.23 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.26, 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. Sec.  216.106 and 218.27 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.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in 
subsequent LOAs if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of mitigation and monitoring set 
forth in the preamble of these regulations. Below are some of the 
possible sources of new data that could contribute to the decision to 
modify the mitigation or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from Cherry Point Range Complex Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (section 218.24(i)).

[[Page 11077]]

    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.24(d)).
    (4) Results from specific stranding investigations (either from the 
Cherry Point Range Complex Study Area or other locations).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded 
by the Navy (described below) or otherwise).
    (7) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent Letters of Authorization.


Sec.  218.28   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. Sec.  216.106 
and 218.26 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.  218.27, 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.  218.20(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 218.26 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. E9-5474 Filed 3-13-09; 8:45 am]
BILLING CODE 3510-22-P