[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28328-28349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13697]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 218



Taking and Importing Marine Mammals; U.S. Navy Training in the Virginia 
Capes Range Complex, Taking and Importing Marine Mammals; U.S. Navy 
Training in the Jacksonville Range Complex, Taking and Importing Marine 
Mammals; U.S. Navy Training in the Cherry Point Range Complex; Final 
Rules

  Federal Register / Vol. 74 , No. 113 / Monday, June 15, 2009 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW78


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

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted at the Virginia Capes (VACAPES) 
Range Complex for the period of June 2009 through June 2014. The Navy's 
activities are considered military readiness activities pursuant to the 
Marine Mammal Protection Act (MMPA), as amended by the National Defense 
Authorization Act for Fiscal Year 2004 (NDAA). These regulations, which 
allow for the issuance of ``Letters of Authorization'' (LOAs) for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species and their habitat, as well as requirements pertaining to 
the monitoring and reporting of such taking.

DATES: Effective June 8, 2009 and is applicable to the Navy on June 5, 
2009 through June 4, 2014.

ADDRESSES: A copy of the Navy's application (which contains a list of 
the references used in this document), NMFS' Record of Decision (ROD), 
and other documents cited herein may be obtained by writing 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 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT). Additionally, the 
Navy's LOA application may be obtained by visiting the Internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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

SUPPLEMENTARY INFORMATION: 
    Extensive Supplementary Information was provided in the proposed 
rule for this activity, which was published in the Federal Register on 
Friday, December 12, 2008 (73 FR 75631). This information will not be 
reprinted here in its entirety; rather, all sections from the proposed 
rule will be represented herein and will contain either a summary of 
the material presented in the proposed rule or a note referencing the 
page(s) in the proposed rule where the information may be found. Any 
information that has changed since the proposed rule was published will 
be addressed herein. Additionally, this final rule contains a section 
that responds to the comments received during the public comment 
period.

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 NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

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

Summary of Request

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

Background of Navy Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (73 FR 75631; December 12, 2008).

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of the training activities. These training activities 
consist of surface warfare [Missile Exercise (MISSILEX) and High-speed 
Anti-Radiation Missile Exercise (HARMEX)], mine warfare [Mine Exercises 
(MINEX)], amphibious warfare

[[Page 28329]]

[Firing Exercise (FIREX)], strike warfare [Bombing Exercise (BOMBEX)], 
and vessel movement to, from and within the VACAPES Range Complex Study 
Area. The narrative description of the action contained in the proposed 
rule has not changed. Table 1 summarizes the nature and levels of these 
planned activities.

       Table 1--Levels of Training Events Involve Explosives Planned in the VACAPES Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
            Operation                  Platform         System/ordnance    Number of events   Duration per event
----------------------------------------------------------------------------------------------------------------
Missile Exercise (MISSILEX) (Air  MH-60S, HH-60H....  AGM-114 (Hellfire   60 sorties (60      1 hour.
 to Surface).                                          missile).           missiles).
                                  F/A-18, P-3C, and   AGM-65 E/F          20 sorties (20      1 hour.
                                   P-8A.               (Maverick           missiles).
                                                       missile).
Bombing Exercise (BOMBEX) (Air-   F/A-18............  MK-83/GBU-32        5 events (20        1 hour.
 to-Surface, At-Sea).                                  [1,000 lb High      bombs, 4 bombs/
                                                       Explosive (HE)      event).
                                                       bomb].
Mine Neutralization.............  MH-60S............  AMNS..............  140 sorties (30     1.5 hours.
                                                                           rounds).
                                  EOD...............  20 lb charges.....  24 events.........  6-8 hours.
FIREX with IMPASS...............  CG, DDG...........  5'' gun (IMPASS)..  22 events (858 HE   8 hours.
                                                                           rounds, 39 HE per
                                                                           event)).
----------------------------------------------------------------------------------------------------------------

VACAPES Range Complex

    The VACAPES Range Complex proposed rule contains a description of 
the VACAPES Study Area along with a description of the areas in which 
certain types of activities will occur. Table 2, included here, 
summarizes the areas in which explosive events will occur and their 
frequency of occurrence. The description of the VACAPES Range Complex 
Study Area in the proposed rule has not changed.

                 Table 2--Number of Events Utilizing Munitions within the VACAPES Range Complex
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                                                                                                         Annual
             Sub-area                      Ordnance          Winter     Spring     Summer      Fall      totals
----------------------------------------------------------------------------------------------------------------
                                    MISSILEX.............  .........  .........  .........  .........         80
Air-K.............................  Hellfire.............      11.25      11.25      11.25      11.25  .........
W-72A (2).........................  Hellfire.............       3.75       3.75       3.75       3.75  .........
Air-K.............................  Maverick.............          5          5          5          5  .........
                                    FIREX................  .........  .........  .........  .........         22
5C/D..............................  5'' rounds...........       1.83       1.83       1.83       1.83  .........
7C/D and 8C/D.....................  5'' rounds...........       1.83       1.83       1.83       1.83  .........
1C1/2.............................  5'' rounds...........       1.83       1.83       1.83       1.83  .........
                                    MINEX................  .........  .........  .........  .........         54
W-50 UNDET........................  5 LB*................       7.50       7.50       7.50       7.50  .........
W-50 UNDET........................  20 LB................       4.00       4.00      12.00       4.00  .........
                                    BOMBEX...............  .........  .........  .........  .........          5
Air-K.............................  MK-83**..............       1.25       1.25       1.25       1.25  .........
----------------------------------------------------------------------------------------------------------------
* The use of 3.24 lb charges during AMNS training were conservatively modeled as 5 lb charges.
** One event using the MK-83 bombs consists of 4 bombs being dropped in succession. For example, in VACAPES Air-
  K there are 5 MK-83 events, which mean that a total of 20 bombs will be dropped per year.

Description of Marine Mammals in the Area of the Specified Activities

    There are 34 marine mammal species with possible or confirmed 
occurrence in the VACAPES Range Complex. As indicated in Table 3, there 
are 33 cetacean species (7 mysticetes and 26 odontocetes) and one 
pinniped species. Table 6 also includes the federal status of these 
marine mammal species. Six marine mammal species listed as federally 
endangered under the Endangered Species Act (ESA) occur in the VACAPES 
Range Complex: the humpback whale, North Atlantic right whale, sei 
whale, fin whale, blue whale, and sperm whale. Although it is possible 
that any of the 34 species of marine mammals may occur in the VACAPES 
Range Complex, only 24 of those species are expected to occur regularly 
in the region. The proposed rule also includes a discussion of the 
methods used to estimate marine mammal density in the VACAPES Study 
Area. The Description of Marine Mammals in the Area of the Specified 
Activities section has not changed from what was in the proposed rule 
(73 FR 75631, pages 75635-75636).

    Table 3--Marine Mammal Species Found in the VACAPES Range Complex
------------------------------------------------------------------------
   Family and scientific name         Common name       Federal status
------------------------------------------------------------------------
Order Cetacea
------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
------------------------------------------------------------------------
Eubalaena glacialis.............  North Atlantic      Endangered.
                                   right whale.
Megaptera novaeangliae..........  Humpback whale....  Endangered.
Balaenoptera acutorostrata......  Minke whale.        ..................

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B. brydei.......................  Bryde's whale.      ..................
B. borealis.....................  Sei whale.........  Endangered.
B. physalus.....................  Fin whale.........  Endangered.
B. musculus.....................  Blue whale........  Endangered.
------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
------------------------------------------------------------------------
Physeter macrocephalus..........  Sperm whale         Endangered.
Kogia breviceps.................  Pygmy sperm whale.  ..................
K. sima.........................  Dwarf sperm whale.  ..................
Ziphius cavirostris.............  Cuvier's beaked     ..................
                                   whale.
Mesoplodon minus................  True's beaked       ..................
                                   whale.
M. europaeus....................  Gervais' beaked     ..................
                                   whale.
M. bidens.......................  Sowerby's beaked    ..................
                                   whale.
M. densirostris.................  Blainville's        ..................
                                   beaked whale.
Steno bredanensis...............  Rough-toothed       ..................
                                   dolphin.
Tursiops truncatus..............  Bottlenose          ..................
                                   dolphin.
Stenella attenuata..............  Pantropical         ..................
                                   spotted dolphin.
S. frontalis....................  Atlantic spotted    ..................
                                   dolphin.
S. longirostris.................  Spinner dolphin.    ..................
S. clymene......................  Clymene dolphin.    ..................
S. coeruleoalba.................  Striped dolphin.    ..................
Delphinus delphis...............  Common dolphin.     ..................
Lagenodephis hosei..............  Fraser's dolphin.   ..................
Lagenorhynchus acutus...........  Atlantic white-     ..................
                                   sided dolphin.
Grampus griseus.................  Risso's dolphin.    ..................
Peponocephala electra...........  Melon-headed        ..................
                                   whale.
Feresa attenuata................  Pygmy killer        ..................
                                   whale.
Pseudorca crassidens............  False killer        ..................
                                   whale.
Orcinus orca....................  Killer whale.       ..................
Globicephala melas..............  Long-finned pilot   ..................
                                   whale.
G. macrorhynchus................  Short-finned pilot  ..................
                                   whale.
Phocoena phocoena...............  Harbor porpoise.    ..................
------------------------------------------------------------------------
Order Carnivora
------------------------------------------------------------------------
Suborder Pinnipedia
------------------------------------------------------------------------
Phoca vitulina..................  Harbor seal.        ..................
------------------------------------------------------------------------
Suborder Sirenia
------------------------------------------------------------------------
Trichechus manatus..............  West Indian         ..................
                                   manatee.
------------------------------------------------------------------------

Potential Impacts to Marine Mammal Species

    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 effecting 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 in the 
VACAPES study area); and (4) to prescribe requirements pertaining to 
monitoring and reporting.
    In the Potential Impacts to Marine Mammal Species section of the 
proposed rule, NMFS included a qualitative discussion of the different 
ways that underwater explosive detonations from MISSILEX, BOMBEX, 
MINEX, and FIREX may potentially affect marine mammals (some of which 
NMFS would not classify as harassment). See 73 FR 75631; December 12, 
2008; pages 75636-75646. Marine mammals may experience direct 
physiological effects (such as threshold shift), acoustic masking, 
impaired communications, stress responses, and behavioral disturbance. 
The information contained in Potential Impacts to Marine Mammal Species 
section from MISSILEX, BOMBEX, MINEX, and FIREX from the proposed rule 
has not changed.
    The information pertaining to HARMEX has changed from the Proposed 
Rule. Further analyses show that HARMEX would have no effects on marine 
mammals because these types of missiles detonate 30-60 ft (9.1-18.3 m) 
above the water surface. Therefore, they are not included in the 
underwater explosive exposure modeling in the Final Rule since no 
marine mammal exposures are anticipated.
    Later, in the Estimated Take of Marine Mammals Section, NMFS 
relates and quantifies the potential effects to marine mammals from 
underwater detonation of explosives discussed here to the MMPA 
definitions of Level A and Level B Harassment. NMFS has also considered 
the effects of mortality on

[[Page 28331]]

these species, although mortality is neither expected, nor will it be 
authorized.
    Additional analyses on potential impacts to marine mammals from 
vessel movement within the VACAPES Range Complex Study Area are added 
below.

Vessel Movement

    There are limited data concerning marine mammal behavioral 
responses to vessel traffic and vessel noise, and a lack of consensus 
among scientists with respect to what these responses mean or whether 
they result in short-term or long-term adverse effects. In those cases 
where there is a busy shipping lane or where there is large amount of 
vessel traffic, marine mammals may experience acoustic masking 
(Hildebrand, 2005) if they are present in the area (e.g., killer whales 
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where 
vessels actively approach marine mammals (e.g., whale watching or 
dolphin watching boats), scientists have documented that animals 
exhibit altered behavior such as increased swimming speed, erratic 
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; 
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al., 
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and 
the shift of behavioral activities which may increase energetic costs 
(Constantine et al., 2003; 2004)). A detailed review of marine mammal 
reactions to ships and boats is available in Richardson et al. (1995). 
For each of the marine mammals taxonomy groups, Richardson et al. 
(1995) provided the following assessment regarding cetacean reactions 
to vessel traffic:
    Toothed whales: ``In summary, toothed whales sometimes show no 
avoidance reaction to vessels, or even approach them. However, 
avoidance can occur, especially in response to vessels of types used to 
chase or hunt the animals. This may cause temporary displacement, but 
we know of no clear evidence that toothed whales have abandoned 
significant parts of their range because of vessel traffic.''
    Baleen whales: ``When baleen whales receive low-level sounds from 
distant or stationary vessels, the sounds often seem to be ignored. 
Some whales approach the sources of these sounds. When vessels approach 
whales slowly and nonaggressively, whales often exhibit slow and 
inconspicuous avoidance maneuvers. In response to strong or rapidly 
changing vessel noise, baleen whales often interrupt their normal 
behavior and swim rapidly away. Avoidance is especially strong when a 
boat heads directly toward the whale.''
    It is important to recognize that behavioral responses to stimuli 
are complex and influenced to varying degrees by a number of factors 
such as species, behavioral contexts, geographical regions, source 
characteristics (moving or stationary, speed, direction, etc.), prior 
experience of the animal, and physical status of the animal. For 
example, studies have shown that beluga whales reacted differently when 
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga 
whales exhibited rapid swimming from ice-breaking vessels up to 80 km 
away, and showed changes in surfacing, breathing, diving, and group 
composition in the Canadian high Arctic where vessel traffic is rare 
(Finley et al., 1990). In other cases, beluga whales were more tolerant 
of vessels, but differentially responsive by reducing their calling 
rates, to certain vessels and operating characteristics (especially 
older animals) in the St. Lawrence River where vessel traffic is common 
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales 
continued to feed when surrounded by fishing vessels and resisted 
dispersal even when purposefully harassed (Fish and Vania, 1971).
    In reviewing more than 25 years of whale observation data, Watkins 
(1986) concluded that whale reactions to vessel traffic were ``modified 
by their previous experience and current activity: habituation often 
occurred rapidly, attention to other stimuli or preoccupation with 
other activities sometimes overcame their interest or wariness of 
stimuli.'' Watkins noticed that over the years of exposure to ships in 
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed 
from frequent positive (such as approaching vessels) interest to 
generally uninterested reactions; finback whales (B. physalus) changed 
from mostly negative (such as avoidance) to uninterested reactions; 
right whales (Eubalaena glacialis) apparently continued the same 
variety of responses (negative, uninterested, and positive responses) 
with little change; and humpbacks (Megaptera novaeangliae) dramatically 
changed from mixed responses that were often negative to often strongly 
positive reactions. Watkins (1986) summarized that ``whales near shore, 
even in regions with low vessel traffic, generally have become less 
wary of boats and their noises, and they have appeared to be less 
easily disturbed than previously. In particular locations with intense 
shipping and repeated approaches by boats (such as the whale-watching 
areas of Stellwagen Bank), more and more whales had P [positive] 
reactions to familiar vessels, and they also occasionally approached 
other boats and yachts in the same ways.''
    In the case of the VACAPES Range Complex, naval vessel traffic is 
expected to be much lower than in areas where there are large shipping 
lanes and large numbers of fishing vessels and/or recreational vessels. 
Nevertheless, the proposed action area is well traveled by a variety of 
commercial and recreational vessels, so marine mammals in the area are 
expected to be habituated to vessel noise.
    As described in the proposed rule, 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 VACAPES Range Complex OPAREA, which is a vast area 
encompassing 27,661 square nautical miles (nm\2\) (an area 
approximately the size of Indiana). The Navy logs about 1,400 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 0.0004 ships/nm\2\).
    Moreover, naval vessels transiting the study area or engaging in 
the training exercises will not actively or intentionally approach a 
marine mammal or change speed drastically. Except under certain 
mitigation measures that protect right whales and other marine mammals 
from vessel strike, all vessels transit to, from, and within the range 
complexes will be traveling at speeds generally ranging from 10 to 14 
knots.
    The final rule contains additional mitigation measures requiring 
Navy vessels to keep at least 500 yards (460 m) away from any observed 
whale and at least 200 yards (183 m) from marine mammals other than 
whales, and avoid approaching animals head-on. Although the radiated 
sound from the vessels will be audible to marine mammals over a large 
distance, it is unlikely that animals will respond behaviorally to low-
level distant shipping noise as the animals in the area are likely to 
be habituated to such noises (Nowacek et al., 2004). In light of these 
facts, NMFS does not expect the Navy's vessel movements to result in 
Level B harassment.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the

[[Page 28332]]

``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 NDAA 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 VACAPES Range Complex training 
activities described in the proposed rule are considered military 
readiness activities.
    NMFS reviewed the Navy's proposed VACAPES Range Complex training 
activities and the proposed VACAPES Range Complex mitigation measures 
presented in the Navy's application to determine whether the activities 
and mitigation measures were capable of achieving the least practicable 
adverse effect on marine mammals.
    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:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to 
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).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to 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).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to 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).
    (5) 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.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS reviewed the Navy's proposed 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.''
    The Navy's proposed mitigation measures were described in detail in 
the proposed rule (73 FR 75631, pages 75646-75649). The Navy's measures 
address personnel training, lookout and watchstander responsibilities, 
operating procedures for training activities using underwater 
detonations of explosives and firing exercises, and mitigation related 
to vessel traffic and the North Atlantic right whale. No changes have 
been made to the mitigation measures described in the proposed rule 
except as noted below.
    Regarding nighttime monitoring in the Personnel Training Lookouts 
section (73 FR 25631, page 25647), slight wording changes have been 
made for Bullet 6 to read: ``At night, to increase effectiveness, 
lookouts would not continuously sweep the horizon with their eyes. 
Instead, lookouts would scan the horizon in a series of movements that 
would allow their eyes to come to periodic rests as they scan the 
sector. When visually searching at night, they would look a little to 
one side and out of the corners of their eyes, paying attention to the 
things on the outer edges of their field of vision. Lookouts will also 
have night vision devices available for use.''
    For mitigation measures under FIREX (73 FR 25631, page 25648), 
corrections were made to reduce the buffer zone from 640 yards (585 m) 
to 600 yards (548 m). Therefore, Bullets 3 and 4 of the FIREX 
mitigation measure read as:

    3. ``Big Eyes'' on the ship will be used to monitor a 600 yd 
(548 m) buffer zone around the target area for marine mammals during 
naval-gunfire events. Due to the distance between the firing 
position and the buffer zone, lookouts are only expected to visually 
detect breaching whales, whale blows, and large pods of dolphins and 
porpoises.
    4. Ships will not fire on the target if marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone. If 
marine mammals are present, operations would be suspended. Visual 
observation will occur for approximately 45 minutes, or until the 
animal has been observed to have cleared the area and is heading 
away from the buffer zone.

    For mitigation measures under MINEX (73 FR 25631, page 25649), 
corrections were made to increase the buffer zone from 656 yards (600 
m) to 700 yards (640 m). Therefore, Bullet 2 of the MINEX mitigation 
measure reads as:

    2. Observers will survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location, for marine mammals from all 
participating vessels during the entire operation. A survey of the 
ZOI (minimum of 3 parallel tracklines 219 yd [200 m] apart) using 
support craft will be conducted at the detonation location 30 
minutes prior through 30 minutes post detonation. Aerial survey 
support will be utilized whenever assets are available.

    The buffer zones for FIREX and MINEX activities were incorrectly 
noticed in the proposed rule for the VACAPES Range Complex. NMFS has 
consulted with the Navy and the Navy has stated that the buffer zones 
should be corrected to ensure consistency for all Navy FIREX and MINEX 
activities across multiple range complexes. The buffer zones identified 
in this final rule are consistent with those established in the 
Southern California Range Complex final rule (74 FR 2882; January 21, 
2009). NMFS does not believe that a decrease in the FIREX buffer zone 
of 40 yards would affect, in any significant way, the Navy's ability to 
detect marine mammals or provide adequate protection to marine mammals 
that may be in the vicinity of a FIREX activity. Moreover, an increase 
in the MINEX buffer zone will further minimize any adverse effects that 
marine mammals could experience as a result of the MINEX activity.
    In response to a comment from the Marine Mammal Commission, NMFS 
will require the Navy to suspend its activities immediately if a marine 
mammal is injured or killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the injury or death), the Navy shall suspend its 
activities immediately and report such incident to NMFS.
    In addition, regarding the North Atlantic right whale (NARW) vessel 
collision measures, NMFS expanded the final rule to include vessel 
collision avoidance measures for the South Atlantic and the Northeast 
Atlantic to be consistent with the U.S. Navy's Atlantic Fleet Active 
Sonar Training (AFAST) rule. Although the VACAPES Range Complex is 
outside the South Atlantic

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and the Northeast Atlantic region, the Navy is required to comply with 
the same ship collision measures while transiting and conducting 
exercises within specific NARW areas along the East Coast. The specific 
vessel collision measures in the Northeast Atlantic region are listed 
in the regulatory text of the final rule.
    NMFS has determined that these mitigation measures (which include a 
suite of measures that specifically address vessel transit and the 
NARW) are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat while also 
considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the effects analyses.
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of underwater detonations or other 
stimuli that we associate with specific adverse effects, such as 
behavioral harassment, temporary threshold shift of hearing sensitivity 
(TTS), or permanent threshold shift of hearing sensitivity (PTS).
    (3) An increase in our understanding of how marine mammals respond 
(behaviorally or physiologically) to underwater detonations 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).
    (4) An increased knowledge of the affected species.
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    (6) A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.

Proposed Monitoring Plan for the VACAPES Range Complex Study Area

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the 
VACAPES Range Complex Monitoring Plan. Additionally, NMFS and the Navy 
have incorporated a suggestion from the public, which recommended the 
Navy hold a peer review workshop to discuss the Navy's Monitoring Plans 
for the multiple range complexes and training exercises in which the 
Navy would receive ITAs (see Monitoring Workshop section). The final 
VACAPES Range Complex Monitoring Plan, which is summarized below, may 
be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy plans to implement all of the 
components of the Monitoring Plan; however, only the marine mammal 
components (not the sea turtle components) will be required by the MMPA 
regulations and associated LOAs.
    A summary of the monitoring methods required for use during 
training events in the VACAPES Range Complex are described below. These 
methods include a combination of individual elements that are designed 
to allow a comprehensive assessment.
I. Vessel or Aerial Surveys
    (A) The Holder of this Authorization shall visually survey a 
minimum of 2 explosive events per year, one of which shall be a 
multiple detonation event. One of the vessel or aerial surveys should 
involve professionally trained marine mammal observers (MMOs).
    (B) If operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (C) Surveys shall 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). 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.
    (D) When conducting a particular survey, the survey team shall 
collect:
     Location of sighting;
     Species (if not possible, indicate whale, dolphin or 
pinniped);
     Number of individuals;
     Whether calves were observed;
     Initial detection sensor;
     Length of time observers maintained visual contact with 
marine mammal;
     Wave height;
     Visibility;
     Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
     Distance of marine mammal from actual detonations (or 
target spot if not yet detonated);
     Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction;
     Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long; and
     If observation occurs while explosives are detonating in 
the water, indicate munition type in use at time of marine mammal 
detection (e.g., were the 5-inch guns actually firing when the animals 
were sighted? Did animals enter an area 2 minutes after a huge 
explosion went off?).
II. Passive Acoustic Monitoring
    The Navy is required to conduct passive acoustic monitoring when 
operationally feasible.
    (A) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (B) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
III. Marine Mammal Observers on Navy Platforms
    (A) Marine mammal observers (MMOs) selected for aerial or vessel 
survey shall be placed on a Navy platform during one of the exercises 
being monitored per year. The remaining designated exercise(s) shall be 
monitored by the Navy lookouts/watchstanders.

[[Page 28334]]

    (B) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (C) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (D) MMOs shall observe from the same height above water as the 
lookouts.
    (E) 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, and the lookout shall take the appropriate action through the 
chain of command.
    (F) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings shall be conducted according to a standard 
operating procedure. Information collected by MMOs should be the same 
as those collected by Navy lookout/watchstanders described above.
    The Monitoring Plan for VACAPES Range Complex has been designed as 
a collection of focused ``studies'' (described fully in the VACAPES 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (a) What are the behavioral responses of marine mammals and sea 
turtles that are exposed to explosives?
    (b) Is the Navy's suite of mitigation measures effective at 
avoiding injury and mortality of marine mammals and sea turtles?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists or trained Navy lookouts/
watchstanders that are experts in their field. This monitoring plan has 
been designed to gather data on all species of marine mammals that are 
observed in the VACAPES Range Complex study area.

Monitoring Workshop

    During the public comment period on past proposed rules for Navy 
actions (such as the Hawaii Range Complex (HRC), and Southern 
California Range Complex (SOCAL) proposed rules), NMFS received a 
recommendation that a workshop or panel be convened to solicit input on 
the monitoring plan from researchers, experts, and other interested 
parties. The VACAPES Range Complex proposed rule included an adaptive 
management component and both NMFS and the Navy believe that a workshop 
would provide a means for Navy and NMFS to consider input from 
participants in determining whether (and if so, how) to modify 
monitoring techniques to more effectively accomplish the goals of 
monitoring set forth earlier in the document. NMFS and the Navy believe 
that this workshop concept is valuable in relation to all of the Range 
Complexes and major training exercise rules and LOAs that NMFS is 
working on with the Navy at this time, and consequently this single 
Monitoring Workshop will be included as a component of all of the rules 
and LOAs that NMFS will be processing for the Navy in the next year or 
so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the VACAPES Range Complex rule as well 
as monitoring results from other Navy rules and LOAs (e.g., AFAST, 
SOCAL, HRC, and other rules). The Monitoring Workshop participants 
would provide their individual recommendations to the Navy and NMFS on 
the monitoring plan(s) after also considering the current science 
(including Navy research and development) and working within the 
framework of available resources and feasibility of implementation. 
NMFS and the Navy would then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the site-specific Monitoring Plan for the VACAPES 
Range Complex, the Navy will complete the Integrated Comprehensive 
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP is 
currently in development by the Navy, with Chief of Naval Operations 
Environmental Readiness Division (CNO-N45) having the lead. The program 
does not duplicate the monitoring plans for individual areas (e.g. 
AFAST, HRC, SOCAL); instead it is intended to provide the overarching 
coordination that will support compilation of data from both range-
specific monitoring plans as well as Navy funded research and 
development (R&D) studies. The ICMP will coordinate the monitoring 
program's progress towards meeting its goals and developing a data 
management plan. A program review board is also being considered to 
provide additional guidance. The ICMP will be evaluated annually to 
provide a matrix for progress and goals for the following year, and 
will make recommendations on adaptive management for refinement and 
analysis of the monitoring methods.
    The primary objectives of the ICMP are to:
     Monitor and assess the effects of Navy activities on 
protected species;
     Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
     Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
     Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the VACAPES Range Complex rule and the other 
planned Navy rules (e.g. Jacksonville Range Complex, Cherry Point Range 
Complex, etc.), the ICMP could potentially provide a framework for 
restructuring the monitoring plans and allocating monitoring effort 
based on the value of particular specific monitoring proposals (in 
terms of the degree to which results would likely contribute to stated 
monitoring goals, as well as the likely technical success of the 
monitoring based on a review of past monitoring results) that have been 
developed through the ICMP framework, instead of allocating based on 
maintaining an equal (or commensurate to effects) distribution of 
monitoring effort across range complexes. For example, if careful 
prioritization and planning through the

[[Page 28335]]

ICMP (which would include a review of both past monitoring results and 
current scientific developments) were to show that a large, intense 
monitoring effort in Hawaii would likely provide extensive, robust and 
much-needed data that could be used to understand the effects of sonar 
throughout different geographical areas, it may be appropriate to have 
other range complexes dedicate money, resources, or staff to the 
specific monitoring proposal identified as ``high priority'' by the 
Navy and NMFS, in lieu of focusing on smaller, lower priority projects 
divided throughout their home range complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years' monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the VACAPES Range Complex rule.
     Guidelines for prioritizing monitoring projects
     If, as a result of the workshop and similar to the example 
described in the paragraph above, the Navy and NMFS decide it is 
appropriate to restructure the monitoring plans for multiple ranges 
such that they are no longer evenly allocated (by rule), but rather 
focused on priority monitoring projects that are not necessarily tied 
to the geographic area addressed in the rule, the ICMP will be modified 
to include a very clear and unclassified record-keeping system that 
will allow NMFS and the public to see how each range complex/project is 
contributing to all of the ongoing monitoring programs (resources, 
effort, money, etc.).

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy's VACAPES Range Complex exercises contain an 
adaptive management component. The use of adaptive management will give 
NMFS the ability to consider new data from different sources to 
determine (in coordination with the Navy) on an annual basis if 
mitigation or monitoring measures should be modified or added (or 
deleted) if new data suggests that such modifications are appropriate 
(or are not appropriate) for subsequent annual LOAs.
    The following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from VACAPES Range Complex or other locations)
     Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
     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 specific stranding investigations (either 
from VACAPES Range Complex or other locations)
     Results from general marine mammal and sound research 
(funded by the Navy 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 (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final 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 and issue 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.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical to ensure compliance with the terms and conditions of a LOA, 
and to provide NMFS and the Navy with data of the highest quality based 
on the required monitoring. As NMFS noted in its proposed rule, 
additional detail has been added to the reporting requirements since 
they were outlined in the proposed rule. The updated reporting 
requirements are all included below. A subset of the information 
provided in the monitoring reports may be classified and not releasable 
to the public.
    NMFS will work with the Navy to develop tables that allow for 
efficient submission of the information required below.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (regional stranding 
coordinator) is notified immediately (or as soon as operational 
security allows) if an injured or dead marine mammal is found during or 
shortly after, and in the vicinity of, any Navy training exercise 
utilizing underwater explosive detonations or other activities. The 
Navy will provide NMFS with species or description of the animal(s), 
the condition of the animal(s) (including carcass condition if the 
animal is dead), location, time of first discovery, observed behaviors 
(if alive), and photo or video (if available).

Annual VACAPES Range Complex Monitoring Plan Report

    The Navy shall submit a report annually on March 1 describing the 
implementation and results (through January 1 of the same year) of the 
VACAPES Range Complex Monitoring Plan, described above. Data collection 
methods will be standardized across range complexes to allow for 
comparison in different geographic locations. Although additional 
information will also be gathered, the marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the VACAPES Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in the major range complex training exercises 
section of the Annual VACAPES Range Complex Exercise Report referenced 
below.
    The VACAPES Range Complex Monitoring Plan Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
Reports from multiple Range Complexes.

Annual VACAPES Range Complex Exercise Report

    The Navy is in the process of improving the methods used to track 
explosives used to provide increased granularity. The Navy will provide 
the information described below for all of their explosive exercises. 
Until the Navy is able to report in full the information below, they 
will provide an annual update on the Navy's explosive tracking methods, 
including improvements from the previous year.

[[Page 28336]]

    (i) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the VACAPES Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

VACAPES Range Complex 5-yr 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 the VACAPES Range Complex exercises for which annual reports are 
required (Annual VACAPES Range Complex Exercise Reports and VACAPES 
Range Complex Monitoring Plan Reports). This report will be submitted 
at the end of the fourth year of the rule (May 2013), covering 
activities that have occurred through December 1, 2012.

Comments and Responses

    On December 12, 2008, NMFS published a proposed rule (73 FR 75631) 
in response to the Navy's request to take marine mammals incidental to 
military readiness training in the VACAPES Range Complex study area and 
requested comments, information and suggestions concerning the request. 
During the 30-day public comment period, NMFS received comments from 1 
private citizen, comments from the Marine Mammal Commission 
(Commission), comments from the Commonwealth of Virginia Department of 
Environmental Quality (Virginia DEQ, including the Department of Game 
and Inland Fisheries (VDGIF) and the Department of Conservation and 
Recreation), comments from the International Fund for Animal Welfare, 
and comments from the Natural Resources Defense Council (on behalf of 
itself, The Humane Society of the United States, Whale and Dolphin 
Conservation Society, Cetacean Society International, Ocean Futures 
Society, Jean-Michel Cousteau). The comments are summarized and sorted 
into general topic areas and are addressed below. Full copies of the 
comment letters may be accessed at http://www.regulations.gov.

MMPA Concerns

    Comment 1: The Commission and IFAW point out that there are 
differences between the Navy's and NMFS' estimates of maximum annual 
takes for the proposed exercises in the VACAPES range complex and that 
these differences should be reconciled.
    Response: NMFS does not believe there are differences between the 
Navy's and NMFS' estimates of maximum annual takes for the VACAPES 
Range Complex training exercises. The perceived differences the 
Commission raised may be the differences between the Navy's initial LOA 
application and its subsequent addendum. The Navy states that further 
analyses on the impacts from the proposed action and the reduction of 
BOMBEX exercises are the reason for the change of take estimates. 
Specifically, the Navy states that ``HARM missile explodes no less than 
30 ft above the water, it is assumed the amount of acoustic energy 
entering the water would be negligible, so exposures from that weapon 
should be removed from the MISSILEX totals. Secondly, the size of the 
BOMBEX location was reduced to avoid important fishing areas, the North 
Atlantic Right Whale migratory corridor, and the Norfolk Canyon area 
which lowered potential exposures for certain species.'' The amendment 
is posted on NMFS incident take Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    Comment 2: The Commission recommends that NMFS include in its 
authorization the number of lethal takes and takes by Level A 
harassment requested by the Navy and regularly confer with the Navy to 
monitor the actual number of such takes to ensure that they do not 
exceed the authorized number.
    Response: NMFS agrees with the Commission. NMFS has, through this 
final rule, included the authorized numbers of marine mammal takes and 
the manner of take (i.e., lethal, Level A or Level B). In addition, 
monitoring and reporting measures are prescribed to ensure that all 
takes as a result of the training activities are accounted for and 
documented. The MMOs and Navy's lookouts/watchstanders will report any 
sightings of marine mammals in the take zone through the chain of 
command. Furthermore, the Navy is required to submit an Annual VACAPES 
Range Complex Monitoring Plan Report. Prior to issuing any subsequent 
LOAs, NMFS will review the Navy's monitoring efforts and data from the 
previous year to determine whether any new measures will be necessary 
or a modification to prior year's measures.
    Comment 3: The Virginia DEQ recommends that NMFS develop the 
regulations to reflect harbor seal, harp seal, and gray seal as their 
occurrence in the inshore and nearshore waters of the mid-Atlantic 
region are becoming more frequent in the fall and winter months.
    Response: Based on the analyses by the Navy and NMFS, there are 34 
marine mammal species with possible or confirmed occurrence in the 
VACAPES Range Complex. As indicated in the proposed rule, there are 33 
cetacean species and one pinniped species (harbor seal). Harp and gray 
seals occur primarily in the North Atlantic, with the former species 
found mostly in the Arctic region. Although there have been increased 
anecdotal sightings of these species in the mid-Atlantic coastal 
waters, their presence in the mid-Atlantic region is still very rare 
(Waring et al., 2008).
    Comment 4: The VDGIF states that the species take list appears to 
be accurate; however, the number of animals predicted to be affected 
for both Level A and Level B harassment are probably underestimated, 
because the species density data from which take estimates are derived 
are based on too few data. Therefore, no marine mammal species should 
be considered unlikely to be affected just because there are no density 
data available (e.g., beaked whales). Since all of the species on the 
list exist in the Virginia and North Carolina Outer Banks stranding 
records, collected and kept by the Virginia Aquarium Stranding Response 
Program, the VDGIF recommends that all species on the take list should 
be considered susceptible to Level B harassment year round. The IFAW 
states that if one of these animals not included in the incidental take 
list is present in the area of testing, there is a higher probability 
that the animal will be struck, and that the assumption that one third 
of the cetacean species in the area will not be exposed nor affected by 
noise represents an oversight in the analysis of potential takes.
    Response: NMFS does not agree with the VDGIF and IFAW's assessment. 
The most current stock assessment reports (Waring et al., 2008) were 
used to calculate density estimates. As summarized in the proposed rule 
and described more fully in the Navy's FEIS, the Navy used the best 
data and methods available to calculate density, including other 
literature as well as habitat modeling that considered bathymetry, 
distance from shelf break, sea surface temperature, and Chlorophyll a 
concentration. All spatial models and density estimates were reviewed 
by NMFS technical staff. The Navy's model utilizes uniform density, but 
it also divides the east coast into meaningful sections, such as on-
shelf and off-shelf and the different OPAREAS.
    Although stranding records indicate that certain species may be 
found dead or injured in the Virginia area, this does not mean that 
these species are normally distributed in this area.

[[Page 28337]]

Rather, certain stranded species are likely more common in other 
geographic regions and due to their death or injury in those areas, 
they may drift and wash ashore in the Virginia area.
    NMFS does not agree that all species identified in a stranding list 
would be affected by the proposed activity. As noted above, NMFS relied 
on the best available data to ascertain density estimates. There are 
certain species for which estimates are unavailable because their 
presence in the VACAPES Range Complex Study Area is rare (e.g., Bryde's 
whale and false killer whale are not reported in NMFS stock assessment 
reports (SARs) for the U.S. Atlantic and Gulf of Mexico regions for the 
stock assessment). NMFS considers it unlikely that species whose 
presence in the action area is rare would be affected by the proposed 
activities.
    For species in which NMFS possesses density data, the Navy 
conducted modeling to calculate the potential takes of these marine 
mammals. As described in the proposed rule, estimating the take that 
could result from the proposed activities entails the following four 
steps: propagation model estimates animals exposed to sources at 
different levels; further modeling determines the number of exposures 
to levels indicated in the criteria above (i.e., number of takes); 
post-modeling corrections refine estimates to make them more accurate; 
mitigation is taken into consideration. Detailed analyses regarding the 
models used, the assumptions used in the models, and the process of 
estimating take is available in Appendix J of the Navy's EIS for the 
VACAPES Range Complex. The Navy's model revealed that species such as 
blue whale, sei whale, spinner dolphin, Fraser's dolphin, Atlantic 
white-sided dolphin, harbor porpoise, and harbor seals would not be 
taken by the proposed activities because their presence in the VACAPES 
Range Complex Study Area is rare.

Acoustic Impacts

    Comment 5: The IFAW states that the Navy failed to cite any 
scientific data to support the claim that ``explosive ordnance and 
underwater detonations would result in only short-term effects to most 
individuals exposed.'' The IFAW also states that FIREX and BOMBEX yield 
a novel situation for impact analysis since they employ multiple 
explosions, and that there is no existing data on the impacts of 
multiple explosions and therefore potential impacts had to be 
extrapolated from single explosion testing. The IFAW further states 
that although a detailed modeling system was developed, the cumulative 
effect of multiple explosions may far exceed the sum of its parts. 
Further research is needed before claims can be made as to the impacts 
of multiple explosions on marine mammals.
    Response: NMFS does not agree with the IFAW's assessment. Although 
few scientific data are currently available on the behavioral effects 
of explosive ordnance on marine mammals, studies of marine mammal 
reactions to intense underwater sounds (Finneran et al., 2000; Schlundt 
et al., 2000; Finneran and Schlundt, 2004), studies of underwater 
detonations on human divers and territorial mammals (Gaspin, 1983; 
Goertner, 1982), studies on the auditory anatomy of marine mammals 
(Ketten, 1998), and studies on source characterization of underwater 
explosions (Cole, 1948; Gaspin and Shuler, 1971; Rogers, 1977; Urick, 
1983) were reviewed. Based on the conclusions of these studies in terms 
of the impact ranges and levels from different explosives and their 
acoustic impacts, NMFS and the Navy determined the use of explosive 
ordnance and underwater detonations in the Navy's VACAPES Range Complex 
(including implementation of mitigation and monitoring measures), would 
result in only short-term effects to most individuals exposed. These 
analyses, including the impact analyses on multiple explosions, were 
described in detail in Appendix A ``Draft Technical Risk Assessment for 
the Use of Underwater Explosives in the Virginia Capes (VACAPES) Range 
Complex'' in the Navy's LOA application and were referenced in the 
proposed rule (73 FR 75631; December 12, 2008).

Mitigation

    Comment 6: The Commission recommends that NMFS include in the final 
rule a requirement that, in all but emergency situations or where the 
need for realistic training requires greater speed or maneuverability, 
the Navy abide by the seasonal restrictions applicable to other vessels 
under NMFS' ship-speed regulations (50 CFR 224.105) to reduce the risk 
of ship collisions with right whales.
    Response: NMFS does not agree with the Commission recommendation. 
NMFS' final rule on ship speed restriction does not apply to vessels 
operated by U.S. Federal agencies. NMFS, in consultation with other 
Federal agencies, has determined that the national security, 
navigational, and human safety missions of some agencies may be 
compromised by mandatory vessel speed restrictions. However, this 
exemption will not relieve the Navy of its obligations to consult, 
under section 7 of the ESA, on how their activities may affect listed 
species. NMFS acknowledges that the Navy already provides guidance to 
vessel operators and fleets with regard to conservation measures to 
protect right whales and other endangered species, as well as 
contribute to conservation efforts generally.
    For the proposed VACAPES Range Complex training activities, the 
Navy has developed a series of mitigation measures that closely follow 
NMFS' ship strike rule. These mitigation measures are described in the 
Proposed Mitigation Measures section of the proposed rule (73 FR 76578; 
December 17, 2008). In addition, NMFS worked with the Navy regarding 
their vessel operations to determine where ESA section 7 consultations 
would be appropriate.
    Comment 7: The Commission recommends that if a serious injury or 
death occurs and that injury or death could have resulted from the 
authorized Navy operations, NMFS and Navy jointly investigate the 
circumstances and steps needed to avoid similar occurrences.
    Response: NMFS concurs with the Commission's recommendation and 
will work with the Navy to address such an occurrence if and when it 
arises.
    Comment 8: The Virginia DEQ and IFAW state that they note that 
mitigation measures for most training exercises are largely comprised 
of maintaining lookouts or watchstanders to look for marine mammals, 
sea turtles, rafts of sargassum grass and other indicators of 
biological activity in the buffer zones or zones of impact. As such, 
most mitigation measures rely entirely on the observers' ability to 
detect sea turtles, marine mammals, and indicators of their presence 
such as sargassum grass under all conditions (e.g., high seas, after 
dark, storms, etc.). The IFAW states that this mitigation strategy is 
insufficient for detecting right whales in the vicinity of Navy 
training exercises.
    Response: NMFS does not agree with the Virginia DEQ and IFAW's 
assessment. Although visual monitoring by lookouts or watchstanders is 
an important component of monitoring measures for the Navy's VACAPES 
Complex Range training exercises, it is not the only mitigation measure 
for most training exercises. Other mitigation and monitoring measures 
are also proposed to reduce any potential impacts to marine mammals 
that would result from the proposed training activities. These include 
establishing safety zones for all exercises involving underwater 
detonations (FIREX,

[[Page 28338]]

BOMBEX, MINEX, and MISSILEX), aerial surveys of the action area, 
limiting certain exercises (BOMBEX, FIREX, and MINEX) to daylight 
hours, etc. In addition, Navy lookouts or watchstanders are 
specifically trained to detect anomalies in the water around the ship 
and both the safety of Navy personnel and success in the training 
exercise depend on the lookout being able to detect objects (e.g., 
marine mammals) effectively around the ship.
    Additionally, 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. These ports include the Hampton Roads entrance 
to the Chesapeake Bay, which includes the concentration of Atlantic 
Fleet vessels in Norfolk, Virginia. Navy vessels are required to use 
extreme caution and operate at a slow, safe speed consistent with 
mission and safety during the months of right whale migration and 
within a 20 nm (37 km) arc (except as noted) of the specified reference 
points.
    Comment 9: The VDGIF recommends NMFS expand the ``elevated time of 
awareness'' for right whales (Table 14 in the proposed FR notice for 
the proposed rule, 73 FR 75631; December 12, 2008) to Oct-April 
(without excluding January) or, at a minimum, Nov-March (without 
excluding January) based on strandings that have occurred in our region 
throughout these months. The VDGIF states that recent observations have 
been made of new mothers as far north as Wilmington, North Carolina 
during the winter calving season (i.e., Nov. 15-April 15), which 
provides further justification for expanding the period of elevated 
awareness for Virginia area and North Carolina.
    Response: The ``elevated time of awareness'' for right whales 
already covers the months between October-April in South Carolina and 
December-April in North Carolina. Although certain months were not 
covered in areas north of North Carolina such as the Chesapeake Bay, 
Delaware Bay, off the coast of New York and New Jersey, this is because 
right whales are extremely rare in these waters during those months. 
Regarding the recent sighting (January 2009) of right whale cows as far 
north as Wilmington, North Carolina, this location and month are 
covered under the current ``elevated time of awareness'' for right 
whales.
    Comment 10: The VDGIF states that the proposed mitigation measures 
and reporting requirement of the proposed rule are acceptable. 
Therefore, the VDGIF has no comments on them.
    Response: Comments noted.

Monitoring and Reporting

    Comment 11: The Commission recommends that NMFS work with the Navy 
to design studies to collect and analyze data necessary to characterize 
the risk of collisions with right whales by Navy vessels.
    Response: Comment noted. The reporting conditions for the Navy's 
training activities require the Navy to report all marine mammal (right 
whale included) sighting information during exercises. This information 
includes the location of sightings, species, number of individuals, and 
calves observed, etc. These data can later be analyzed to characterize 
the risk of collisions with marine mammals by Navy vessels. To the 
extent resources exist, NMFS will endeavor to work with the Navy to 
develop more formal studies that would allow each agency to obtain the 
necessary data to characterize the risk of Navy vessel collisions with 
right whales and to take further steps to minimize the probability of a 
vessel strike.
    Comment 12: The Commission recommends that NMFS work with the Navy 
to sponsor a peer review of existing risk analysis procedures and the 
interpretation and use of survey or other data in those analyses, and 
work with the Navy to validate the effectiveness of monitoring and 
mitigation measures, preferably before beginning or, if that is 
infeasible, in conjunction with the Navy operations subject to this 
incidental take authorization.
    Response: At this time, NMFS concludes that the risk analyses for 
naval activities and MMPA rulemakings are appropriate. If necessary, 
NMFS and the Navy will coordinate at some future date to determine 
whether additional consideration of the risk analysis procedure is 
warranted. Regarding the effectiveness of monitoring and mitigation 
measures, this final rule includes a requirement for the Navy to 
convene a Monitoring Workshop in 2011 in which the 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. NMFS believes that this type of 
workshop, with participants including the Navy, NMFS, researchers, 
invited experts, and other interested parties, in combination with an 
adaptive management plan that allows for modification would provide a 
means for the Navy to adjust the Monitoring Plan as needed to more 
effectively accomplish the goals of monitoring set forth earlier. NMFS 
would incorporate any changes into future LOAs and future rules as 
necessary. NMFS has statutory responsibility to prescribe regulations 
pertaining to mitigation, monitoring, and reporting, and will, in 
coordination with the Navy, develop the most effective and appropriate 
mitigation, monitoring, and reporting protocols for future 
authorizations.
    In addition, NMFS has been working with the Navy throughout the 
rulemaking process to develop a series of mitigation, monitoring, and 
reporting protocols. NMFS believes that the measures prescribed in this 
final rule are practicable, effective and will afford the necessary 
protection to marine mammals.

NEPA

    Comment 13: The Virginia DEQ requests that the final Integrated 
Comprehensive Monitoring Program (ICMP) be included in the EIS if 
possible.
    Response: The ICMP will not be completed until the summer of 2009, 
therefore, it is not possible to include the ICMP in the FEIS. However, 
the Navy will include a comprehensive monitoring plan and a summary of 
the ICMP in the FEIS. In addition, the site specific comprehensive 
monitoring plan and a summary of the ICMP are included in the Navy's 
VACAPES Range Complex final rule.

Miscellaneous Issues

    Comment 14: The Virginia DEQ requests that NMFS consider in the 
final regulations that NMFS (1) coordinate with the Virginia Department 
of Game and Inland Fisheries and the U.S. Fish and Wildlife Service for 
information regarding the possible impacts to protected species and to 
ensure compliance with protected species legislation, and (2) contact 
Rene Hypes of the Virginia Department of Conservation and Recreation 
Division of Natural Heritage at (804) 371-2708 for an update on natural 
heritage information if a significant amount of time passes before the 
proposed activities are initiated since new and updated information is 
continually added to Biotics.
    Response: NMFS published a proposed rule for the VACAPES Range 
Complex training exercises (73 FR 75631; December 12, 2008) that 
included a detailed description of protected marine mammal species 
within the Range Complex. NMFS will work with Virginia as necessary and 
advise the State if there is any change to the proposed action and 
updates on natural resources information. With

[[Page 28339]]

respect to other protected species such as ESA listed turtles or fish, 
the Navy is conducting a Section 7 consultation with NMFS. The Navy has 
completed consultation with Delaware, Maryland, Virginia, and North 
Carolina under the Coastal Zone Management Act. In addition, NMFS is 
working to ensure that the final rule for the proposed action and the 
LOAs issued to the Navy is in compliance with protected species 
legislation through the ESA consultation and the MMPA permitting 
review.
    NMFS does not expect there will be a significant amount of time 
that passes between finalization of rule and the commencement of naval 
exercises. To the extent there is, NMFS will coordinate, as 
appropriate, with the State and FWS.
    Comment 15: The NRDC commented on the proposed rule with its 
earlier comments on the NMFS' proposed rule for the Navy's Atlantic 
Fleet Active Sonar Training (AFAST) and the Navy's AFAST DEIS. 
Specifically, the NRDC states that neither NMFS in its proposed rule, 
nor the Navy in its EIS offers sufficient measures to mitigate the 
harmful impacts of high intensity sonar. The NRDC further states that 
NMFS and the Navy's analysis substantially understates the potential 
effects of sonar on marine wildlife.
    Response: NRDC's comments are inapplicable to the proposed Navy 
training activities in the VACAPES Range Complex. The Navy does not 
intend, as part of its proposed action, to conduct training with MFAS, 
HFAS, and Improved Extended Echo Ranging (IEER)/Advanced Extended Echo 
Ranging (AEER). The Navy's request for a LOA for sonar related training 
was addressed in the Final Rule and LOA for AFAST which was issued by 
NMFS on January 22, 2009, and published in the Federal Register on 
February 19, 2009 (74 FR 4844).
    Comment 16: One private citizen expressed general opposition to 
Navy activities and NMFS' issuance of an MMPA authorization because of 
the danger of killing marine life.
    Response: NMFS appreciates the commenter's concern for the marine 
mammals that live in the area of the proposed activities. However, the 
MMPA allows individuals to take marine mammals incidental to specified 
activities if NMFS can make the necessary findings required by law 
(i.e., negligible impact, unmitigable adverse impact on subsistence 
users, etc.). As explained throughout this rulemaking, NMFS has made 
the necessary findings under 16 U.S.C. 1371(a)(5)(A) to support our 
issuance of the final rule.

Estimated Take of Marine Mammals

    As mentioned previously, with respect to the MMPA, NMFS' effects 
assessments serve 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 
effecting 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 in the VACAPES Range Complex; 
thus, there would be no affect to any subsistence user); and (4) to 
prescribe requirements pertaining to monitoring and reporting.
    In the Estimated Take of Marine Mammals section of the proposed 
rule, NMFS related the potential effects to marine mammals from 
underwater detonation of explosives to the MMPA regulatory definitions 
of Level A and Level B Harassment and assessed the effects to marine 
mammals that could result from the specific activities that the Navy 
intends to conduct. The subsections of this analysis are discussed in 
the proposed rule (73 FR 75631; December 12, 2008) and have not 
changed.

Acoustic Take Criteria

    In the Acoustic Take Criteria section of the proposed rule, NMFS 
described the development and application of the acoustic criteria for 
explosive detonations (73 FR 76531; December 12, 2008). No changes have 
been made to the discussion contained in this section of the proposed 
rule.

Take Calculations

    In the Take Calculation section of the proposed rule, NMFS 
described in detail how the take estimates were calculated through 
modeling (73 FR 76531). No changes have been made to the discussion 
contained in this section of the proposed rule.
    A summary of potential exposures from ordnance (per year) for 
marine mammals in the VACAPES Range Complex is listed in Table 4 (these 
exposure estimates are similar to those presented in the proposed 
rule).

 Table 4--Summary of Potential Takes From Explosive Ordnance (per Year) for Marine Mammals in the VACAPES Range
                                                     Complex
----------------------------------------------------------------------------------------------------------------
                                                                         Level B         Level A
                              Species                                  harassment      harassment     Mortality
----------------------------------------------------------------------------------------------------------------
Fin whale..........................................................               2               0            0
Humpback whale.....................................................               2               0            0
North Atlantic right whale.........................................               0               0            0
Sperm whale........................................................               2               0            0
Atlantic spotted dolphin...........................................              43               1            0
Beaked whales......................................................               0               0            0
Bottlenose dolphin.................................................              29               0            0
Clymene dolphin....................................................              33               0            0
Common dolphin.....................................................           2,193              20            0
Kogia sp...........................................................               3               0            0
Pantropical spotted dolphin........................................              70               1            0
Pilot whale........................................................              10               0            0
Risso's dolphin....................................................              16               0            0
Rough-toothed dolphin..............................................               1               0            0
Striped dolphin....................................................              68               3            0
----------------------------------------------------------------------------------------------------------------


[[Page 28340]]

Effects on Marine Mammal Habitat

    NMFS' VACAPES Range Complex proposed rule included a section that 
addressed the effects of the Navy's activities on marine mammal habitat 
(73 FR 75631, page 75654). The Navy's proposed training exercises could 
potentially affect marine mammal habitat through underwater detonation 
and the introduction of explosive sound into the water column, and 
impacts to the prey species of marine mammals. These potential impacts 
are considered in the VACAPES FEIS and were determined by the Navy to 
have no effect on marine mammal habitat. Based on the information below 
and the supporting information included in the Navy's FEIS, NMFS has 
determined that the VACAPES Range Complex training activities will not 
have adverse or long-term impacts on marine mammal habitat.
    Unless the sound source or explosive detonation is stationary and/
or continuous over a long duration in one area, the effects of 
underwater detonation and its associated sound are generally considered 
to have a less severe impact on marine mammal habitat than the physical 
alteration of the habitat. Marine mammals may be temporarily displaced 
from areas where Navy training is occurring, but the area will be 
utilized again after the activities have ceased.

Effects on Food Resources

    There are currently no well established thresholds for estimating 
effects to fish from explosives other than mortality models. Fish that 
are located in the water column, in proximity to the source of 
detonation could be injured, killed, or disturbed by the impulsive 
sound and possibly temporarily leave the area. Continental Shelf Inc. 
(2004) summarized a few studies conducted to determine effects 
associated with removal of offshore structures (e.g., oil rigs) in the 
Gulf of Mexico. Their findings revealed that at very close range, 
underwater explosions are lethal to most fish species regardless of 
size, shape, or internal anatomy. For most situations, cause of death 
in fishes has been massive organ and tissue damage and internal 
bleeding. At longer range, species with gas-filled swimbladders (e.g., 
snapper, cod, and striped bass) are more susceptible than those without 
swimbladders (e.g., flounders, eels).
    Studies also suggest that larger fishes are generally less 
susceptible to death or injury than small fishes. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms; and orientation of fish relative to the shock wave may affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) also 
seem to be less affected than reef fishes. The results of most studies 
are dependent upon specific biological, environmental, explosive, and 
data recording factors.
    The huge variations in the fish population, including numbers, 
species, sizes, and orientation and range from the detonation point, 
make it very difficult to accurately predict mortalities at any 
specific site of detonation. However, most fish species experience a 
large number of natural mortalities, especially during early life-
stages, and any small level of mortality caused by the VACAPES Range 
Complex training exercises involving explosives will likely be 
insignificant to the population as a whole.
    Therefore, potential impacts to marine mammal food resources within 
the VACAPES Range Complex is negligible given both the very geographic 
and spatially limited scope of most Navy at sea activities including 
underwater detonations, and the high biological productivity of these 
resources. No short or long term effects to marine mammal food 
resources from Navy activities are anticipated within the VACAPES Range 
Complex. There is no critical habitat for marine mammals in the 
proposed VACAPES Range Complex Study Area.

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.), as well as 
the number and nature of estimated Level A takes, the number of 
estimated mortalities, and effects on habitat.
    The Navy's specified activities have been described based on best 
estimates of the planned detonation events the Navy would conduct for 
the proposed VACAPES Range Complex training activities. The events are 
generally short in duration, including a total of 115 1-1.5-hour events 
and 46 6-8-hour events. Taking the above into account, along with the 
fact that NMFS anticipates no mortalities (and few injuries) to result 
from the action, the fact that there are no specific areas of 
reproductive importance for marine mammals recognized within VACAPES, 
the sections discussed below, and dependent upon the implementation of 
the proposed mitigation measures, NMFS has determined that Navy 
training exercises utilizing underwater detonations will have a 
negligible impact on the affected marine mammal species and stocks 
present in the VACAPES Range Complex Study Area.
    NMFS' analysis of potential behavioral harassment, temporary 
threshold shifts, permanent threshold shifts, injury, and mortality to 
marine mammals as a result of the VACAPES Range Complex training 
activities was provided in the proposed rule (73 FR 75631, pages 75636-
75646) and is described in more detail below.

Behavioral Harassment

    The Navy plans a total of 80 MISSILEX training events (each lasting 
for 1 hour), 22 FIREX training events (each lasting for 8 hours), 5 
BOMBEX training events (each lasting for 1 hour), 30 MH-60S MINEX 
training events (each lasting for 1.5 hours), and 24 EOD MINEX training 
events (each lasting for 6-8 hours) annually. The total training 
exercises proposed by the Navy in the VACAPES Range Complex amount to 
under 500 hours per year. These detonation events are widely dispersed 
throughout several of the designated sites within the VACAPES Range 
Complex Study Area. The probability that detonation events will overlap 
in time and space with marine mammals is low, particularly given the 
densities of marine mammals in the VACAPES Range Complex Study Area and 
the implementation of monitoring and mitigation measures. Moreover, 
NMFS does not expect animals to experience repeat exposures to the same 
sound source as animals will likely move away from the source after 
being exposed. In addition, these isolated exposures,

[[Page 28341]]

when received at distances of Level B behavioral harassment (i.e., 177 
dB re 1 microPa\2\-sec), are expected to cause brief startle reactions 
or short-term behavioral modification by the animals. These brief 
reactions and behavioral changes are expected to disappear when the 
exposures cease. Therefore, these levels of received impulse noise from 
detonation are not expected to affect annual rates or recruitment or 
survival.

TTS

    NMFS and the Navy have estimated that individuals of some species 
of marine mammals may sustain some level of temporarily threshold shift 
TTS from underwater detonations. TTS can last from a few minutes to 
days, be of varying degree, and occur across various frequency 
bandwidths. The TTS sustained by an animal is primarily classified by 
three characteristics:
     Frequency--Available data (of mid-frequency hearing 
specialists exposed to mid to high frequency sounds--Southall et al., 
2007) suggest that most TTS occurs in the frequency range of the source 
up to one octave higher than the source (with the maximum TTS at \1/2\ 
octave above).
     Degree of the shift (i.e., how many dB is the sensitivity 
of the hearing reduced by)--generally, both the degree of TTS and the 
duration of TTS will be greater if the marine mammal is exposed to a 
higher level of energy (which would occur when the peak dB level is 
higher or the duration is longer). Since the impulse from detonation is 
extremely brief, an animal would have to approach very close to the 
detonation site to increase the received SEL. The threshold for the 
onset of TTS for detonations is a dual criteria: 182 dB re 1 
microPa\2\-sec or 23 psi, which might be received at distances from 
345-2,863 m from the centers of detonation based on the types of NEW 
involved to receive the SEL that causes TTS compared to similar source 
level with longer durations (such as sonar signals).
     Duration of TTS (Recovery time)--Of all TTS laboratory 
studies, some using exposures of almost an hour in duration or up to 
217 SEL, almost all recovered within 1 day (or less, often in minutes), 
though in one study (Finneran et al., 2007), recovery took 4 days.
     Although the degree of TTS depends on the received noise 
levels and exposure time, all studies show that TTS is reversible and 
animals' sensitivity is expected to recover fully in minutes to hours. 
Therefore, NMFS expects that TTS would not affect annual rates of 
recruitment or survival.

Acoustic Masking or Communication Impairment

    As discussed above, it is also possible that anthropogenic sound 
could result in masking of marine mammal communication and navigation 
signals. However, masking only occurs during the time of the signal 
(and potential secondary arrivals of indirect rays), versus TTS, which 
occurs continuously for its duration. Impulse sounds from underwater 
detonation are extremely brief and the majority of most animals' 
vocalizations would not be masked. Therefore, masking effects from 
underwater detonation are expected to be minimal and unlikely. If 
masking or communication impairment were to occur briefly, it would be 
in the frequency ranges below 100 Hz, which overlaps with some 
mysticete vocalizations; however, it would likely not mask the entirety 
of any particular vocalization or communication series because of the 
short impulse.

PTS, Injury, or Mortality

    The Navy's model estimated that 1 Atlantic spotted dolphin, 20 
common dolphins, 1 pantropical spotted dolphin, and 3 striped dolphins 
could experience 50% tympanic membrane rupture or slight lung injury 
(Level A harassment) as a result of the training activities utilizing 
underwater detonation in the VACAPES Range Complex Study Area. However, 
these estimates do not take into consideration the proposed mitigation 
and monitoring measures. For underwater detonations, the animals have 
to be within an area between certain injury zones of influence (ZOI) to 
experience Level A harassment. Such injury ZOI varies from 0.02 km\2\ 
to 6.39 km\2\ (or at distances between 80 m to 1,426 m from the center 
of detonation) depending on the types of munition used and the season 
of the action. Though it is possible that Navy observers could fail to 
detect an animal at a distance of more than 1 km (an injury ZOI during 
BOMEX, which is planned to have 5 events annually), all injury ZOIs 
from other detonation activities (FIREX, MISSILEX, and MINEX) are 
smaller than 0.165 km\2\ (230 m in radius) and NMFS believes it is 
unlikely that any marine mammal could be detected by lookouts/
watchstanders or MMOs. As discussed previously, the Navy plans to 
utilize aerial or vessel surveys to detect marine mammals for 
mitigation implementation and indicated that they are capable of 
effectively monitoring safety zones.
    Based on these assessments, NMFS determined that approximately 2 
humpback whales, 2 fin whales, 2 sperm whales, 3 dwarf or pygmy sperm 
whales, 1 rough-toothed dolphin, 29 bottlenose dolphins, 70 pantropical 
spotted dolphins, 68 stripped dolphins, 33 Clymene dolphins, 43 
Atlantic spotted dolphins, 2,193 common dolphins, 16 Risso's dolphins, 
and 10 pilot whales could be affected by Level B harassment (TTS and 
sub-TTS) as a result of the proposed VACAPES Range Complex training 
activities. These numbers represent approximately 0.24%, 0.09%, 0.04%, 
0.76%, 0.04%, 1.58%, 0.07%, 0.08%, 1.82%, 0.08%, and 0.03% of humpback 
whales, fin whales, sperm whales, dwarf or pygmy sperm whales, 
bottlenose dolphins, pantropical spotted dolphins, striped dolphins, 
Clymene dolphins, Atlantic spotted dolphins, common dolphins, Risso's 
dolphins, and pilot whales, respectively in the vicinity of the 
proposed VACAPES Range Complex Study Area (calculation based on NMFS 
2007 US Atlantic and Gulf of Mexico Marine Mammal Stock Assessment). 
Although the population estimates of Clymene dolphins and rough-toothed 
dolphins are unknown in the proposed action area, NMFS believes that 
the take of 33 individuals of Clymene dolphins and 1 individual of 
rough-toothed dolphin by Level B harassment would have a negligible 
impact to this species because most of their population exists beyond 
the project area and because they are widely distributed species in the 
North Atlantic (Jefferson et al., 1993; Reeves et al., 2002).
    In addition, the Level A takes of 1 Atlantic spotted dolphin, 20 
common dolphins, 1 pantropical spotted dolphin, and 3 striped dolphins 
represent 0.002%, 0.0166%, 0.0225%, and 0.0032% of these species, 
respectively, in the vicinity of the proposed VACAPES Range Complex 
Study Area (calculation based on NMFS 2007 US Atlantic and Gulf of 
Mexico Marine Mammal Stock Assessment). Given these very small 
percentages, NMFS does not expect there to be any long-term adverse 
effect on the populations of the aforementioned dolphin species. No 
marine mammals are expected to be killed as a result of these 
activities.
    Additionally, the aforementioned take estimates do not account for 
the implementation of mitigation measures. With the implementation of 
mitigation and monitoring measures, NMFS expects that the takes would 
be reduced further. Coupled with the fact that these impacts will 
likely not occur in areas and times critical to reproduction, NMFS has 
determined that the total taking over the 5-year period of the 
regulations and subsequent LOAs from the Navy's VACAPES Range Complex

[[Page 28342]]

training activities will have a negligible impact on the marine mammal 
species and stocks present in the VACAPES Range Complex Study Area.

Subsistence Harvest of Marine Mammals

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

ESA

    There are five marine mammal species, three sea turtle species, and 
a fish species that are listed as endangered under the ESA with 
confirmed or possible occurrence in the study area and could be 
impacted by the proposed action: Humpback whale, North Atlantic right 
whale, blue whale, fin whale, sperm whale, loggerhead sea turtle, 
leatherback sea turtle, the Kemp's ridley sea turtle, and the shortnose 
sturgeon.
    Pursuant to Section 7 of the ESA, the Navy has consulted with NMFS 
on this action. NMFS has also consulted internally on the issuance of 
regulations under section 101(a)(5)(A) of the MMPA for this activity. 
The Biological Opinion concludes that the proposed training activities 
are likely to adversely affect but are not likely to jeopardize the 
continued existence of these threatened and endangered species under 
NMFS jurisdiction.

NEPA

    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statement (FEIS) for the VACAPES Range Complex. 
NMFS subsequently adopted the Navy's EIS for the purpose of complying 
with the MMPA.

Determination

    Based on the analysis contained herein and in the proposed rule 
(and other related documents) of the likely effects of the specified 
activity on marine mammals and their habitat and dependent upon the 
implementation of the mitigation measures, NMFS finds that the total 
taking from Navy VACAPES Range Complex training exercises utilizing 
underwater explosives over the 5 year period will have a negligible 
impact on the affected species or stocks and will not result in an 
unmitigable adverse impact on the availability of marine mammal species 
or stocks for taking for subsistence uses because no subsistence uses 
exist in the VACAPES Range Complex study area. NMFS has issued 
regulations for these exercises that prescribe the means of effecting 
the least practicable adverse impact on marine mammals and their 
habitat and set forth requirements pertaining to the monitoring and 
reporting of that taking.

Classification

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act.
    Pursuant to Executive Order 12866, the Office of Management and 
Budget has determined that this rule is not significant.
    The Chief Counsel for Regulation of the Department of Commerce 
certified at the Proposed Rule stage that this 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 RFA. 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, which are only used by the U.S. military, during training 
activities that are only conducted by the U.S. Navy. Additionally, 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.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C. 
553(d)(3)) to waive the 30-day delay in effective date of the measures 
contained in the final rule. The U.S Navy has a compelling national 
policy reason to continue military readiness activities without 
interruption in its East Coast Operating Areas, i.e., the VACAPES Range 
Complex. As discussed below, suspension/interruption of the Navy's 
ability to train, for even a small number of days, disrupts vital 
sequential training and certification processes essential to our 
national security.
    In order to meet its national security objectives, the Navy must 
continually maintain its ability to operate in a challenging at-sea 
environment, conduct military operations, control strategic maritime 
transit routes and international straits, and protect sea lines of 
communications that support international commerce. To meet these 
objectives, the Navy must continually train. Timely training is 
critical because individual Navy units and Strike Groups/Amphibious 
Readiness Groups (ARG) currently operate in, or need to quickly deploy 
to high risk geographic areas. In addition, a Strike Group/ARG is built 
around an aircraft carrier with typically 5,300 personnel on board and 
an amphibious assault ship that carries a Marine Corps Expeditionary 
Unit, so failure to adequately train risks thousands of lives.
    The training necessary to protect American interests and the lives 
of sailors and marines is complex. It involves ensuring the warfighter 
can accurately identify potential threats in a variety of marine 
environments and conditions, and it involves the coordination of 
different vessels and aircraft so that the group's capabilities are 
employed in the most tactically effective manner. As with any 
complicated coordinated effort, this challenge requires routine 
practice, as these skills are perishable.
    In 10 U.S.C. 5062, Congress mandated that the Chief of Naval 
Operations (CNO) organize, train, and equip all Naval forces for 
combat. In response, the Fleet Response Training Plan (FRTP) is a major 
initiative designed to ensure Naval units receive required training 
before they deploy. The FRTP is an arduous sequential training cycle in 
which unit level training (ULT) and combat certification are followed 
by major exercises that bring together various warfare components so 
they have the opportunity to practice as an integrated whole and attain 
certification. Accordingly, any delay in coordinated training creates a 
significant and unreasonable risk which could result in a unit's and/or 
Strike Group's inability to train, certify and report as directed to an 
overseas theater of operations.
    A deployment certification exercise is currently scheduled for June 
2009 that will encompass areas of the VACAPES Range Complex. Lack of 
the appropriate environmental regulatory coverage for even a single day 
imperils completion of this exercise, and risks deployment 
certification. Essential ULT also occurs in these OPAREAs. There is 
limited unit level underway (at-sea) time available in the FRTP to 
adjust the training dates. These ULT training periods are driven by 
sequential certification processes for both inport and at-sea training.

[[Page 28343]]

Scheduling constraints are further complicated by the availability of 
Afloat Training Groups (ATGs) that are responsible for training all 
individual units. ATGs have a limited number of trainers available at 
any given time, and their schedules must also be de-conflicted, 
compounding the problem if training schedules are not adhered to. 
Waiver of the 30-day delay of the effective date of the Final Rule will 
allow Navy to finalize operational procedures to ensure compliance with 
required mitigation, monitoring, and reporting requirements, and have 
MMPA authorization in place prior to Navy's vital June 2009 exercise.

List of Subjects in 50 CFR Part 218

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

    Dated: June 5, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR Chapter II is amended by 
adding part 218 to read as follows:
0
1. Part 218 is added to read as follows:

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

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

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

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


Sec.  218.1  Specified activity, specified geographical area and 
effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occur incidental to the activities 
described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the VACAPES Range Complex Operation Area (OPAREA), 
which is located in the coastal and offshore waters of the western 
North Atlantic Ocean adjacent to Delaware, Maryland, Virginia, and 
North Carolina. The northernmost boundary of the VACAPES Range Complex 
OPAREA is located 37 nautical miles (nm) off the entrance to Delaware 
Bay at latitude 38[deg]45' N, the farthest point of the eastern 
boundary is 184 nm east of Chesapeake Bay at longitude 72[deg]41' W, 
and the southernmost point is 105 nm southeast of Cape Hatteras, North 
Carolina, at latitude of 34[deg]19' N. The western boundary of the 
VACAPES Range Complex OPAREA lies 3 nm from the shoreline at the 
boundary separating state and Federal waters.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The detonation of the underwater explosives indicated in 
paragraph (c)(1)(i) of this section conducted as part of the training 
events indicated in paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile)
    (B) AGM-65 E/F (Maverick missile)
    (C) MK-83/GBU-32 (1,000 lb High Explosive bomb)
    (D) Airgorne Mine Neutralization system (AMNS)
    (E) 20 lb NEW charges
    (F) AGM-88 (HARM)
    (G) 5'' Naval Gunfire
    (ii) Training Events:
    (A) Mine Exercise (MINEX) (Mine Neutralization [AMNS])--up to 150 
exercises over the course of 5 years (an average of 30 per year);
    (B) Mine Exercise (MINEX) (Mine Neutralization [20 lb NEW 
charges])--up to 120 exercises over the course of 5 years (an average 
of 24 per year);
    (C) Bombing Exercise (BOMBEX) (Air-to-Surface)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (D) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire 
missile)--up to 300 exercises over the course of 5 years (an average of 
60 per year);
    (E) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick, HE)--up 
to 100 exercises over the course of 5 years (an average of 20 per 
year); and
    (F) FIREX with IMPASS--up to 110 exercises over the course of 5 
years (an average of 22 per year).
    (2) [Reserved]
    (d) Regulations are effective June 8, 2009 and are applicable to 
the Navy on June 5, 2009 through June 4, 2014.


Sec.  218.2  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
of this chapter and Sec.  218.7, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec.  218.1(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of this subpart and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  218.1(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.1(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--10 (an average of 2 
annually); and
    (B) Fin whale (Balaenoptera physalus)--10 (an average of 2 
annually).
    (ii) Odontocetes:
    (A) Sperm whale (Physeter macrocephalus)--10 (an average of 2 
annually);
    (B) Pygmy or dwarf sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (C) Rough-toothed dolphin (Steno bredanensis)--5 (an average of 1 
annually);
    (D) Bottlenose dolphin (Tursiops truncatus)--145 (an average of 29 
annually);
    (E) Pantropical spotted dolphin (Stenella attenuata)--350 (an 
average of 70 annually);
    (F) Striped dolphin (S. coeruleoalba)--340 (an average of 68 
annually);
    (G) Clymene dolphin (S. clymene)--165 (an average of 33 annually);
    (H) Atlantic spotted dolphin (S. frontalis)--215 (an average of 43 
annually);
    (I) Common dolphin (Delphinus delphis)--10,965 (an average of 2,193 
annually);
    (J) Risso's dolphin (Grampus griseus)--80 (an average of 16 
annually); and
    (K) Pilot whales (Globicephala sp.)--50 (an average of 10 
annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--5 (an average of 1 annually);

[[Page 28344]]

    (ii) Common dolphin--100 (an average of 20 annually);
    (iii) Pantropical spotted dolphin--5 (an average of 1 annually); 
and
    (iv) Striped dolphin--15 (an average of 3 annually).


Sec.  218.3  Prohibitions.

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


Sec.  218.4  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.1(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (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.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts shall watch for 
and report to the OOD the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (G) When whales have been sighted in the area, Navy vessels shall 
increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or 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. 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. Vessels shall take reasonable steps to 
alert other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate 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.
    (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

[[Page 28345]]

marine mammals that may occur at any time during or within 24 hours 
after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels 
that would transit to and from East Coast ports and the VACAPES Range 
Complex.
    (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 (at a 
speed that does not compromise safety of navigation) 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 (paragraphs (a)(3)(ii)(A) & (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) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited.
    (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 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

[[Page 28346]]

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 
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 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 per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the death), the Navy shall suspend its activities 
immediately and report the incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in. Explosive Rounds):
    (A) FIREX using IMPASS would only be conducted in the four 
designated areas specified in the Navy's LOA application in the VACAPES 
Range Complex.
    (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 
be required to maintain a lookout 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 600 yd (548 
m) buffer zone around the target area for marine mammals during naval-
gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (E) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) FIREX with IMPASS shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State 
three (3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs):
    (A) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) altitude or 
lower, if safe to do so, and at the slowest safe speed.
    (B) A buffer zone of 5,100-yd (4,663 m) radius shall be established 
around the intended target zone. The exercises shall be conducted only 
when marine mammals are observed to be outside the buffer zone.
    (C) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (iii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammal transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iv) Mine Neutralization Training Involving Underwater Detonations 
(up to 20-lb charges):
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (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 of marine mammals 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 of marine 
mammals for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet (Chesapeake Bay Inlets).
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations 
during the exercise as well as measures taken if species are detected 
within the ZOI.
    (b) [Reserved]


Sec.  218.5  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter and Sec.  218.7 for activities described 
in Sec.  218.1(c) is required to cooperate with the NMFS 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.  218.1(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified in Sec.  218.2(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the VACAPES 
Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below.
    (1) Vessel or aerial surveys. (i) The Holder of this Authorization 
shall visually survey a minimum of 2 explosive events per year, one of 
which shall be a multiple detonation event.

[[Page 28347]]

One of the vessel or aerial surveys should involve professionally 
trained marine mammal observers (MMOs).
    (ii) Where operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 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). For vessel based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal 
detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array shall have the capability of detecting low 
frequency vocalizations (<1,000 Hz) for baleen whales and relatively 
high frequency (up to 30 kHz) for odontocetes. 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) As required in 
Sec.  218.5(c)(1), MMOs selected for aerial or vessel survey shall be 
placed on a Navy platform during one of the explosive exercises being 
monitored per year, the other designated exercise shall be monitored by 
the Navy lookouts/watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting and the lookout shall 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. Information collected by MMOs be the same as those collected 
by Navy lookout/watchstanders described in Sec.  218.5(c)(1)(iv).
    (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 VACAPES Range 
Complex and across range complexes.
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (f) Annual VACAPES Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on March 1 describing the implementation 
and results (through January 1 of the same year) of the VACAPES Range 
Complex Monitoring Plan. Data collection methods shall be standardized 
across range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the VACAPES Range 
Complex Monitoring Plan shall, at a minimum, provide the same marine 
mammal observation data required in the data required in Sec.  
218.5(g). The VACAPES Range Complex Monitoring Plan Report may be 
provided to NMFS within a larger report that includes the required 
Monitoring Plan Reports from VACAPES Range Complex and multiple range 
complexes.
    (g) Annual VACAPES Range Complex Exercise Report--The Navy shall 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this

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final rule) conducted in the VACAPES Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) VACAPES Range Complex 5-yr 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 the VACAPES Range 
Complex exercises for which annual reports are required (Annual VACAPES 
Range Complex Exercise Reports and VACAPES Range Complex Monitoring 
Plan Reports). This report shall be submitted at the end of the fourth 
year of the rule (May 2013), covering activities that have occurred 
through December 1, 2012.
    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the VACAPES Range Complex 
Comprehensive Report, the Annual VACAPES Range Complex Exercise Report, 
or the Annual VACAPES Range Complex Monitoring Plan Report (or the 
multi-Range Complex Annual Monitoring Plan Report, if that is how the 
Navy chooses to submit the information) if submitted within 3 months of 
receipt. These reports shall be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or 
three months after the submittal of the draft if NMFS does not comment 
by then.
    (j) 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.  218.6  Applications for Letters of Authorization.

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


Sec.  218.7  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  218.8.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  218.8  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.7 for the activity identified in Sec.  218.1(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.6 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
218.5(c) through (i); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.4 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.  216.106 of this chapter and Sec.  218.8 indicates that a 
substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming season will occur, NMFS will 
provide the public a period of 30 days for review and comment on the 
request. Review and comment on renewals of Letters of Authorization are 
restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (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 VACAPES Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.5(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.5(d)).
    (4) Results from specific stranding investigations (either from the 
VACAPE Range Complex Study Area or other locations, and involving 
coincident explosives training or not involving coincident use).
    (5) Results from general marine mammal and sound research (funded 
by the Navy or otherwise).
    (6) 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.  218.9  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.  216.106 of 
this chapter and Sec.  218.7 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  218.8, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  218.2(c), a Letter of 
Authorization issued pursuant to Sec.  216.106 of this chapter and 
Sec.  218.7 may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be

[[Page 28349]]

published in the Federal Register within 30 days subsequent to the 
action.

[FR Doc. E9-13697 Filed 6-8-09; 4:15 pm]
BILLING CODE 3510-22-P