[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28349-28370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13698]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW79


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

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

ACTION: 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 off the Charleston/Jacksonville 
(JAX) 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).

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 Wednesday, December 17, 2008 (73 FR 76578). 
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 and of no more than 1 year, the Secretary 
shall issue a notice of proposed authorization for public 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 six species of cetaceans 
incidental to the proposed training activities in the JAX Range Complex 
over the course of 5 years. On November 7, 2008, the Navy submitted an 
Addendum with some modifications and additional information to its 
original request. These training activities are classified as military 
readiness activities. The Navy states that these training activities 
may cause various impacts to marine mammal species in the proposed JAX 
Range Complex area. The Navy requests an authorization to take 
individuals of these cetacean species by Level B Harassment. Further, 
the Navy requests authorization to take 2 individual Atlantic spotted 
dolphins per year by injury incidental to the proposed training 
activities in the JAX Range Complex. Please refer to Table 5 of this 
document for detailed information of the potential exposures from 
explosive ordnance (per year) for marine mammals in the JAX Range 
Complex. However, due to the proposed mitigation and monitoring 
measures, NMFS does not expect the proposed action would result in any 
marine mammal mortality. Therefore, no mortality would be authorized 
for the Navy's JAX 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 76578; December 17, 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)], mine warfare 
[Mine Exercises (MINEX)], amphibious warfare [Firing Exercise

[[Page 28350]]

(FIREX)], small arms training (explosive hand grenades), and vessel 
movement to, from, and within the JAX Range Complex Study Area. The 
description of the action contained in the proposed rule has not 
changed (73 FR 76578, pages 76579-76581). Table 1 summarizes the nature 
and level of these planned activities.
    The Navy provided the following additional information regarding 
the anti-swimmer grenade training. Any single event using the MK3A2 
grenades could consist of up to 10 high explosive (HE) grenades being 
used. The total number of HE grenades used per year will not exceed 80. 
Non-explosive practice grenades may also be used in these training 
events. For modeling purposes, and to account for the highest number of 
grenades that may potentially be used during an individual event, it 
was assumed that there would be 8 events (up to 10 grenades per event), 
or a total of 80 grenades, per year.

             Table 1--Training Events Involving Explosives Planned in the JAX Range Complex Per Year
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            Operation                  Platform         System/ordnance    Number of events     Event duration
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Missile Exercise (MISSILEX) (Air  MH-60R/S, SH-60B,   AGM-114 (Hellfire   70 sorties (70      1 hour.
 to Surface).                      HH-60H.             missile).           missiles).
                                  P-3C, and P-8A....  AGM-65 (Maverick    3 sorties (3        1 hour.
                                                       missile).           missiles).
Mine Neutralization.............  EOD...............  20 lb charges.....  12 events.........  6-8 hours.
FIREX with IMPASS...............  CG, DDG...........  5'' gun (IMPASS)..  10 events (390      8 hours.
                                                                           rounds).
Small Arms Training (explosive    Maritime            MK3A2 anti-swimmer  8 events (10        1 hour.
 hand grenades).                   Expeditionary       grenades (HE).      grenades per
                                   Support Group                           event).
                                   (Various Small
                                   Boats).
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JAX Range Complex

    The JAX Range Complex proposed rule contains a description of the 
JAX Range Complex 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 JAX Range Complex Study 
Area in the proposed rule has not changed.

                                  Table 2--Number of Events Utilizing Explosive Munitions Within the JAX Range Complex
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                                                                                                                                                Annual
                   Sub-area*                                  Ordnance                  Winter        Spring        Summer         Fall         total
                                                                                                                                                events
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 MISSILEX..........................  ............  ............  ............  ............           73
MLTR...........................................  Hellfire..........................         17.5          17.5          17.5          17.5            70
MLTR...........................................  Maverick..........................          0.75          0.75          0.75          0.75            3
                                                 FIREX.............................  ............  ............  ............  ............           10
BB, CC.........................................  5'' rounds........................        **0           **0             5             5              10
                                                 MINEX.............................  ............  ............  ............  ............           12
UNDET North....................................  20 LB.............................          1.25          1.25          2.25          1.25            6
UNDET South....................................  20 LB.............................          1.25          1.25          2.25          1.25            6
                                                 Small Arms Training...............  ............  ............  ............  ............        *** 8
UNDET North....................................  MK3A2 anti-swimmer concussion               1             1             1             1               4
                                                  grenade (0.5 lbs NEW).
UNDET Sorth....................................  MK3A2 anti-swimmer concussion               1             1             1             1               4
                                                  grenade (0.5 lbs NEW).
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* See Figure 1 of the LOA application for the location of sub-areas.
** In accordance with the current biological opinion for the Southeast, no live FIREX is conducted during North Atlantic right whale calving season
  (December 1-March 31) and therefore no modeling was completed for the winter and spring season.
*** (10 grenades per event)

Description of Marine Mammals in the Area of the Specified Activities

    There are 29 marine mammal species with possible or confirmed 
occurrence in the JAX Range Complex. As indicated in Table 3, all of 
the marine mammals are cetacean species (7 mysticetes and 22 
odontocetes). 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 JAX 
Range Complex: the humpback whale, North Atlantic right whale, sei 
whale, fin whale, blue whale, and sperm whale. The proposed rule also 
includes a discussion of the methods used to estimate marine mammal 
density in the JAX 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 76581-76582).

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

[[Page 28351]]

 
Megaptera novaeangliae...................  Humpback whale..................  Endangered.
Balaenoptera acutorostrata...............  Minke whale.....................
B. brydei................................  Bryde's whale...................
B. borealis..............................  Sei whale.......................  Endangered.
B. physalus..............................  Fin whale.......................  Endangered.
B. musculus..............................  Blue whale......................  Endangered.
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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. densirostris..........................  Blainville's beaked whale.......
Steno bredanensis........................  Rough-toothed dolphin...........
Tursiops truncatus.......................  Bottlenose dolphin..............
Stenella attenuate.......................  Pantropical spotted dolphin.....
S. frontalis.............................  Atlantic spotted dolphin........
S. longirostris..........................  Spinner dolphin.................
S. clymene...............................  Clymene dolphin.................
S. coeruleoalba..........................  Striped dolphin.................
Delphinus delphis........................  Common dolphin..................
Lagenodephis hosei.......................  Fraser's dolphin................
Grampus griseus..........................  Risso's dolphin.................
Peponocephala electra....................  Melon-headed whale..............
Feresa attenuate.........................  Pygmy killer whale..............
Pseudorca crassidens.....................  False killer whale..............
Orcinus orca.............................  Killer whale....................
G. macrorhynchus.........................  Short-finned pilot whale........
----------------------------------------------------------------------------------------------------------------

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 
JAX Range Complex 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 vessel strikes and underwater explosive detonations from 
MISSILEX, MINEX, and FIREX may potentially affect marine mammals (some 
of which NMFS would not classify as harassment)--see 73 FR 76578, pages 
76582-76587. 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 the proposed 
rule has not changed.
    The Navy provided additional information concerning potential 
impacts from MK3A2 anti-swimmer concussion grenades during small arms 
training. Modeling was completed for the MK3A2 explosive source, which 
assumed a 6 ft (1.8 m) detonation depth. The net explosive weight (NEW) 
of the MK3A2 grenade is 0.5 lb.
    Determining the zone of influence (ZOI) of different thresholds 
from MK3A2 explosives in terms of total energy flux density (EFD), 
impulse, peak pressure and 1/3-octave bands EFD must treat the 
sequential explosions differently than the single detonations. For the 
MK3A2, two factors are involved for the sequential explosives that deal 
with the spatial and temporal distribution of the detonations as well 
as the effective accumulation of the resultant acoustics. In view of 
the ZOI determinations, the sequential detonations are modeled as a 
single point event with only the EFD summed incoherently:

[GRAPHIC] [TIFF OMITTED] TR15JN09.000


    The multiple explosion energy criteria were used to determine the 
ZOI for the non-injurious behavioral (without TTS) exposure analysis.
    Table 4 shows the ZOI results of the model estimation for MK3A2 
grenade in the JAX Range Complex. The ZOI, when multiplied by the 
animal densities and total number of events, provides the exposure 
estimates for that species. In addition to other mitigation measures, 
lookouts will visually survey the target area for marine mammals. The 
exercise will not be conducted until the area is clear of protected 
species and will be suspended if any enter the buffer area.

[[Page 28352]]



                                            Table 4--Estimated ZOIs (km \2\) for Small Arms Training (Anti-Swimmer Grenades) in the JAX Range Complex
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                                                                                          Estimated ZOI @ 177 dB re 1         Estimated ZOI @ 205 dB re 1          Mortality ZOI @ 30.5 psi
                                                                                            [mu]Pa\2\-sec (multiple             [mu]Pa\2\-sec or 13 psi      -----------------------------------
                      Area*                                    Ordnance                        detonations only)         ------------------------------------
                                                                                     ------------------------------------                                       Win      Spr      Sum      Fall
                                                                                        Win      Spr      Sum      Fall     Win      Spr      Sum      Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET North.....................................  MK3A2 grenade.....................     4.25     4.30     3.97     3.97     0.09     0.09     0.09     0.09    <0.01    <0.01    <0.01    <0.01
UNDET South.....................................  MK3A2 grenade.....................     4.67     4.72     4.24     4.59     0.09     0.09     0.09     0.09    <0.01    <0.01    <0.01    <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK3A2 grenades are modeled as multiple detonations (10 grenades being used during each event).
* See Figure 1 of the LOA application for the location of sub-areas.

    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.
    Additional analyses on potential impacts to marine mammals from 
vessel movement within the JAX 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 JAX 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

[[Page 28353]]

occur intermittently and are variable in duration, ranging from a few 
hours up to 2 weeks. These operations are widely dispersed throughout 
the JAX Range Complex OPAREA, which is a vast area encompassing 50,090 
square nautical miles (nm\2\). The Navy logs about 1,000 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 0.00005 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 ``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 JAX Range 
Complex training activities described in the proposed rule are 
considered military readiness activities.
    NMFS reviewed the Navy's proposed JAX Range Complex training 
activities and the proposed JAX 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:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at 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).
    (c) 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).
    (d) 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).
    (e) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (f) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS reviewed the Navy's proposed mitigation measures, which 
included a careful balancing of the likely benefits 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 76578; December 17, 2008; pages 76592-76595). 
Slight wording changes have been made to the Personnel Training 
Lookouts section as presented in the Proposed Rule (page 76592). Bullet 
6 of that section is modified 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.''
    The Navy's measures addressing operating procedures for training 
activities using underwater detonation of explosives and firing 
exercises, and mitigation related to vessel traffic and the North 
Atlantic right whale (NARW) were described in the proposed rule. No 
changes have been made to the mitigation measures described in the 
proposed rule except the following requirements.
    During specific at-sea training events, 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.
    Regarding the 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. 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 
and Southeast Atlantic regions 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

[[Page 28354]]

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 JAX 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 JAX 
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 JAX 
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 JAX 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) When 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) would 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 shall 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.
    (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

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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 JAX Range Complex has been designed as a 
collection of focused ``studies'' (described fully in the JAX 
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 JAX 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 JAX 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 JAX Range Complex rule as well as 
monitoring results from other Navy rules and LOAs (e.g., VACAPES, 
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 JAX Range 
Complex, the Navy will complete the Integrated Comprehensive Monitoring 
Program (ICMP) Plan by the end of 2009. The ICMP will provide the 
overarching coordination that will support compilation of data from 
project-specific monitoring plans (e.g., JAX Monitoring Plan) 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. 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 JAX Range Complex rule and the other 
planned Navy rules (e.g. VACAPES 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 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 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 JAX 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

[[Page 28356]]

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 JAX 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.
    Following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from JAX 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 JAX 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 suggest that such modifications would have (or would 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 explosives 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 JAX 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 
JAX 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 JAX Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in major range complex training exercises 
section of the Annual JAX Range Complex Exercise Report referenced 
below.
    The JAX 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 JAX Range Complex Exercise Report

    The Navy is in the process of improving the methods used to track 
explosives use 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.
    (1) 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 JAX Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

JAX 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 JAX Range Complex exercises for which annual reports are 
required (Annual JAX Range Complex Exercise Reports and JAX 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 17, 2008, NMFS published a proposed rule (73 FR 76578) 
in response to the Navy's request to take marine mammals incidental to 
military readiness training in the JAX 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 International Fund for Animal Welfare 
(IFAW), and comments from the Natural Resources Defense Council (on 
behalf of itself, The Humane Society of the United States, Defenders of 
Wildlife, International Fund for Animal Welfare,

[[Page 28357]]

Whale and Dolphin Conservation Society, Cetacean Society International, 
Ocean Futures Society, and 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.
    NMFS worked with the Navy to develop MMPA rules and LOAs for the 
JAX Range Complex. Many of the issues raised in the public comments for 
this rule were also raised for the VACAPES Range Complex rulemaking and 
NMFS considered many of the broader issues in the context of these two 
Navy actions when determining how to address the comments. To the 
extent necessary, the public may refer to the response to comments 
section in the VACAPES final rule (addressing similar issues identified 
in the JAX Range Complex final rule).

MMPA Concerns

    Comment 1: The Commission recommends that NMFS consult with the 
Navy regarding the possible need to expand the proposed authorization 
to include additional species that might be taken unexpectedly and a 
more realistic number of takes for species that occur in groups, 
including Clymene dolphins, pantropical spotted dolphins, pilot whales, 
and Risso's dolphins.
    Response: NMFS has consulted with the Navy regarding the 
possibility of additional species that might be taken unexpectedly and 
a more realistic number of takes for species that occur in groups. A 
more detailed analysis is provided in the Estimated Take of Marine 
Mammals section. These additional species include minke whale, common 
dolphin, pygmy/dwarf sperm whales, and several species of beaked 
whales.
    Comment 2: The Commission recommends that NMFS revise section 
218.11 of the proposed regulation to clarify that the authorized 
numbers of takes are annual limits that would be applicable over a 
five-year period.
    Response: NMFS has revised this section in the final rule to 
clarify that the authorized numbers of takes are annual limits that 
will be applicable over a five-year period.
    Comment 3: The IFAW states that it is concerned with the 
possibility of Navy ships striking North Atlantic right whales (NARW) 
in the JAX Range Complex Study Area, and states that NMFS mistakenly 
concludes that take permits are unnecessary despite the fact that the 
proposed exercise area overlaps right whale critical habitat. The IFAW 
observes that the mitigation measures described in the proposed rule 
represent a strong effort by the U.S. Navy and NMFS to mitigate 
potential harm to critically endangered NARW, but they do not 
accomplish that goal. The IFAW further states that the Navy has been 
involved in ship strikes in the past (specifically, a female NARW and 
her near-term calf in the mid-Atlantic in 2004).
    Response: NMFS appreciates the IFAW's concern regarding the 
possibility of Navy ships striking North Atlantic right whales and 
other marine mammal species in the JAX Range Complex Study Area but 
does not agree with the IFAW's assessment that NMFS mistakenly reached 
its conclusion that take of NARW is unlikely.
    Regarding ship strikes, the Navy's EIS concluded that based on the 
implementation of Navy mitigation measures, especially during times of 
anticipated NARW occurrence, and the relatively low density of Navy 
ships in the Study Area, the likelihood that a vessel strike would 
occur is very low. In addition to the standard operating procedures to 
reduce the likelihood of collisions, which include: (1) Use of lookouts 
trained to detect all objects on the surface of the water (including 
marine mammals); (2) a requirement to avoid the close interaction of 
Navy assets and marine mammals; and (3) maneuvering to keep away from 
any observed marine mammal, the Navy has issued extensive North 
Atlantic right whale protective measures for all Fleet Forces training 
activities. These measures, which were developed with input from NMFS, 
include additional training requirements, designated areas of caution 
(where caution includes speed or direction adjustments and avoidance of 
known groups of right whales when feasible) and additional reporting 
requirements. NMFS and the Navy believe that the required measures will 
allow the Navy to avoid colliding with large whales during their 
specified activities. The Navy neither requested, nor did NMFS grant, 
authorization for take of right whales from ship strikes incidental to 
the specified activities.
    Regarding the right whale strike in 2004, the commenter is most 
likely referring to an event that took place on November 17, 2004. On 
November 17 at about 10:30 a.m. a Navy amphibious assault ship struck a 
large whale off the Chesapeake Light House. A few hours later, around 
noon, a fisherman contacted the Virginia Aquarium stranding hotline and 
reported a live injured large whale with a fresh wound on the tail 
where the left fluke lobe was missing. On November 24, a dead right 
whale was necropsied at Ocean Sands, NC. The right whale was a pregnant 
female and the cause of death was determined to be blood loss owing to 
a traumatic wound to the left fluke lobe, which was missing, and damage 
to surrounding tissue and bone. The wound was consistent with that 
caused by a ship strike. Neither NMFS nor the Navy can confirm or deny 
that the dead right whale necropsied on November 24 was the same whale 
struck by the Navy on November 17.
    The USCG and Navy have standing orders to report sightings or 
collisions. Although the NMFS ship strike database reflects a 
disproportionately high number of ship strikes attributable to USCG and 
Navy vessels over the years, this is likely due to the high reporting 
rate by those agencies relative to other mariners and vessels, rather 
than a higher incidence of right whale ship strikes by Federal agency 
vessels. These two Federal agencies are actively involved in large 
whale protection programs and reporting struck or dead whales to NMFS 
is part of their standard operating procedures.
    Comment 4: Citing Nowacek et al. (2004) that North Atlantic right 
whales exposed to alarm stimuli ``abandoned their current foraging dive 
prematurely, * * * executed a shallow-angled, high power * * * ascent, 
remained at or near the surface'' for an ``abnormally long'' period of 
time, and ``spent significantly more time at subsurface depths (1-10 m) 
compared with normal surfacing periods when whales normally stay within 
1 m of the surface,'' the IFAW states that NARW calves are most 
vulnerable to impacts from collisions and noise from ships, 
helicopters, bombs and missiles. The IFAW further concludes that alarm 
stimuli were a poor option in attempts to mitigate vessel collisions 
because the whale's reaction actually makes ship strikes more likely. 
The IFAW also notes NMFS' previous conclusion on North Atlantic right 
whales that the ``loss of even a single individual right whale may 
contribute to the extinction of the species,'' and that ``preventing 
the mortality of one adult female alters the projected outcome.''
    Response: NMFS is aware of the Nowacek et al. (2004) study on the 
North Atlantic right whale response to strong anthropogenic noise. The 
study consisted of a controlled sound exposure on right whales and 
concluded that the whales reacted strongly to the alarm signal, but 
failed to respond to sounds of approaching vessels or the vessels 
themselves. In addition, the data revealed that the whales responded to 
the alarm stimuli by swimming strongly to the surface, a response 
likely to

[[Page 28358]]

increase the probability of a vessel/whale collision. However, alarm 
stimuli are not a concern for this particular rulemaking. The Navy has 
neither proposed using, nor is NMFS requiring alarm stimuli to minimize 
vessel strikes associated with activities in the JAX Range Complex. 
Therefore, in the context of this rulemaking, alarm stimuli are not a 
concern.
    As the IFAW suggests, the loss of even one right whale would have 
serious effects on the population; however, as discussed in the 
proposed rule and above, NMFS does not expect a NARW to be taken by 
naval exercises in the JAX Range Complex, including the southern right 
whale critical habitat. Additionally, this zero take estimate does not 
account for the mitigation measures that will be implemented for the 
JAX Range Complex training activities, which include a prohibition of 
approaching right whales within 500 yards and not conducting training 
within the vicinity of recently sighted whales. NMFS was able to 
determine that the Navy's JAX Range Complex training activities would 
not result in a take of NARWs.
    Comment 5: The IFAW states that the Navy's and NMFS's distribution 
assumptions may be flawed in that they are likely to overestimate the 
number of marine mammals in some areas while underestimating the number 
in others. The Commission recommends NMFS defer promulgation of a final 
rule until it and/or the Navy conducts an independent peer review of 
the methods used to derive marine mammal density estimates in the Navy 
OPAREA Density Estimates (NODE) report.
    Response: NMFS does not agree with the IFAW's statement that the 
Navy and NMFS have used flawed data in estimating the number of takes 
of marine mammals. Though it is a fair assessment that animal 
distributions in the water column are often uneven, the marine mammal 
information contained in the analyses relies heavily on the data 
gathered in the Marine Resource Assessments (MRAs). The Navy MRA 
Program was implemented by the Commander, Fleet Forces Command, to 
initiate collection of data and information concerning the protected 
and commercial marine resources found in the Navy's OPAREAs. 
Specifically, the goal of the MRA program is to describe and document 
the marine resources present in each of the Navy's OPAREAs. The MRA for 
the JAX OPAREA was recently updated in 2008 (DoN, 2008).
    The MRA data were used to provide a regional context for each 
species. The MRA represents a compilation and synthesis of available 
scientific literature (e.g., journals, periodicals, theses, 
dissertations, project reports, and other technical reports published 
by government agencies, private businesses, or consulting firms), and 
NMFS reports including stock assessment reports, recovery plans, and 
survey reports.
    As far as the Commission's recommendation regarding peer-review of 
the NODE data, the density estimates that were used in previous Navy 
environmental documents have been recently updated to provide a 
compilation of the most recent data and information on the occurrence, 
distribution, and density of marine mammals. The updated density 
estimates used for the analyses are derived from the Navy OPAREA 
Density Estimates (NODE) for the Southeast OPAREAS report (DON, 2007).
    Density estimates for cetaceans were either modeled using available 
line-transect survey data or derived using available data in order of 
preference: (1) Through spatial models using line-transect survey data 
provided by NMFS; (2) using abundance estimates from Mullin and Fulling 
(2003); (3) or based on the cetacean abundance estimates found in the 
most current NMFS stock assessment report (SAR) (Waring et al., 2007), 
which can be viewed at: http://www.nefsc.noaa.gov/publications/tm/tm210/.
    For the model-based approach, density estimates were calculated for 
each species within areas containing survey effort. A relationship 
between these density estimates and the associated environmental 
parameters such as depth, slope, distance from the shelf break, sea 
surface temperature, and chlorophyll a concentration was formulated 
using generalized additive models. This relationship was then used to 
generate a two-dimensional density surface for the region by predicting 
densities in areas where no survey data exist.
    The analyses for cetaceans were based on sighting data collected 
through shipboard surveys conducted by NMFS Northeast Fisheries Science 
Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between 
1998 and 2005. Species-specific density estimates derived through 
spatial modeling were compared with abundance estimates found in the 
most current NMFS SAR to ensure consistency. All spatial models and 
density estimates were reviewed by and coordinated with NMFS Science 
Center technical staff and scientists with the University of St. 
Andrews, Scotland, Centre for Environmental and Ecological Modeling 
(CREEM). Draft models and preliminary results were reviewed during a 
joint workshop attended by Navy, NMFS Science Center, and CREEM 
representatives. Subsequent revisions and draft reports were reviewed 
by these same parties. Therefore, NMFS considers that the NODE has 
already gone through an independent review process.
    Comment 6: The IFAW points out that even taking for granted the 
Navy's and NMFS' distribution information, NMFS ignores the Navy's 
request for take permits for 2 Atlantic spotted dolphins, instead 
deciding that take will be less than estimated due to mitigation and 
monitoring measures. IFAW concludes that NMFS' determination is 
incorrect where Atlantic spotted dolphins are likely to suffer physical 
injury resulting from exposure to noise in excess of 205 dB. The IFAW 
considers that the Atlantic spotted dolphins' small size and ability to 
move quickly will make them difficult to detect by Navy's lookouts or 
other detection systems. Therefore, the IFAW states NMFS' proposal to 
not grant take permits is arbitrary and capricious.
    Response: NMFS does not agree with the IFAW comment. NMFS did not 
ignore the Navy's request for take of two Atlantic spotted dolphins by 
Level A harassment. As shown in Table 11 of the proposed rule for the 
JAX Range Complex training activities (73 FR 76578; December 17, 2008), 
and in Table 5 of this final rule, the Navy modeled take estimates for 
various cetacean species, including Atlantic spotted dolphins, and NMFS 
has adopted the Navy's estimates for this rulemaking. Please refer to 
the proposed rule (73 FR 76578; December 17, 2008) for clarification. 
NMFS has, through this final rule, established a framework that would 
allow the Navy to take a specified number of Atlantic spotted dolphins 
by Level A harassment incidental to naval exercises in the JAX Range 
Complex.
    Comment 7: The IFAW points out that the U.S. Navy and NMFS fail to 
address the impact of stress on marine mammals. Stress has been shown 
to cause physical harm, including weakening of the immune system, in 
marine mammals. It is safe to assume that marine mammals in the JAX 
Range Complex would be subjected to stress resulting from single or 
multiple explosive concussions. Yet, despite this potential, NMFS 
assumes that stress would have a negligible impact on marine mammals in 
the JAX Range.
    Response: NMFS does not agree with the IFAW's assessment. It is 
true that intense acoustic exposure from

[[Page 28359]]

explosives can be considered a potential stressor if, by its action on 
the animal, via auditory or non-auditory means, it may produce a stress 
response in the animal. The term ``stress'' has taken on an ambiguous 
meaning in the scientific literature, but in general, the stress 
response refers to an increase in energetic expenditure which results 
from exposure to the stressor and which is predominantly characterized 
by either the stimulation of the sympathetic nervous system or the 
hypothalamic-pituitary-adrenal axis (Reeder and Kramer, 2005).
    The stress response may or may not occur depending on the 
characteristics of the exposed animal. However, provided a stress 
response occurs, we assume that some contribution is made to the 
animal's allostatic load. Perturbations to an animal that may occur 
with the presence of a stressor, either biological (e.g., predator) or 
anthropogenic (e.g., construction), can contribute to the allostatic 
load (Wingfield, 2003). Additional costs are cumulative and additions 
to the allostatic load over time may contribute to reductions in the 
probability of achieving ultimate life history functions (e.g., 
survival, maturation, reproductive effort and success) by producing 
pathophysiological states. The contribution to the allostatic load from 
a stressor requires estimating the magnitude and duration of the stress 
response, as well as any secondary contributions that might result from 
a change in behavior.
    Since the detonation events are widely dispersed throughout several 
of the designated sites within the JAX 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 JAX Range Complex Study Area and the implementation of 
monitoring and mitigation measures. Moreover, NMFS does not expect 
animals to experience repeated exposures to the same sound source as 
animals will likely move away from the source after being exposed. In 
addition, these isolated exposures, 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, 
it is highly unlikely that the animals will be exposed to the repeated 
stressors (i.e., detonations) to suffer increased allostatic load.
    Based on the analyses in the proposed rule and subsequent analyses 
contained herein, NMFS has determined that the issuance of 5-year 
regulations is appropriate for Navy training exercises utilizing 
underwater detonations since it will have a negligible impact on the 
marine mammal species and stocks present in the JAX Range Complex.

Mitigation

    Comment 8: The Commission recommends that NMFS require the Navy to 
abide by the restrictions specified in NMFS' final rule implementing 
speed restrictions to reduce the risk of ship collisions with right 
whales (50 CFR 224.105) in all but emergency situations or where the 
need for realistic training requires greater speed or maneuverability.
    Response: NMFS does not agree with the Commission's 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 JAX Range Complex training activities, the Navy 
has developed a series of mitigation measures that closely follow the 
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 9: The IFAW points out that the proposed rule requires the 
Navy to ``practice increased vigilance'' when passing through seasonal 
right whale habitat. The IFWC states that requiring the Navy to 
practice increased vigilance is an abdication of NMFS' duties to 
independently analyze potential takes of North Atlantic right whales. 
Further, if NMFS is to allow Navy to mitigate harm through ``increased 
vigilance,'' that term should be defined in the proposed rule.
    Response: NMFS does not agree with the IFAW's statement. Within the 
context of this rulemaking, the term ``increased vigilance'' means to 
be on heightened alert to avoid vessel-whale interactions especially 
when operating in areas where/when NARWs are known to be migrating/
present. For example, if NARWs are known to be in a particular area, 
instead of routine scanning through the sea surface for marine mammals 
that may or may not be in the vicinity, the lookouts/watchstanders or 
MMOs will be actively searching for the NARW that is potentially in the 
area.
    During times of ``increased vigilance'' the Navy will rely on the 
NARW Early Warning System (EWS). Language from the JAX EIS pertaining 
to EWS is provided below:
    ``The coastal waters off the Southeast United States (SEUS) support 
the only known calving ground for the North Atlantic Right Whale 
(NARW). In the mid 1990's, the United States (U.S.) Navy, U.S. Coast 
Guard (USCG), U.S. Army Corps of Engineers (USACE), and National Marine 
Fisheries Service (NMFS) entered into a Memorandum of Agreement 
pursuant to the Endangered Species Act. The Early Warning System (EWS) 
is a result of that agreement and is a collaborative effort which 
involves comprehensive aerial surveys conducted during the North 
Atlantic Right Whale calving season. Surveys are flown daily, weather 
permitting, from December 1st through March 31st.''
    ``East/west transects are flown from shoreline to approximately 30-
35 nm offshore. Aerial surveys are conducted to locate NARW and provide 
whale detection and reporting information to mariners in the NARW 
calving ground in an effort to avoid collisions with this endangered 
species. When a NARW is sighted, information from the aerial survey 
aircraft is passed to a ground contact. The ground contact e-mails the 
sighting information to a wide network distribution which includes 
Fleet Area Control and Surveillance Facility (FACSFAC) JAX, the USCG, 
the USACE and non-profit and commercial interests. Additionally, the 
ground contact will follow up with a call to FACSFAC JAX to provide 
further information if necessary. FACSFAC JAX records this valuable 
information and disseminates to all navy vessels and aircraft operating 
in the consultation area via the Secret Internet Protocol Router 
Network (SIPRNET) system.''
    ``General sighting information and reporting procedures are 
broadcasted over the following methods: the NOAA weather radio; USCG 
NAVTEX system and a Broadcast Notice to Mariners over VHF marine-band 
radio channel 16. The

[[Page 28360]]

EWS is a wide communication effort to ensure all vessels in the area 
are aware of the most recent right whale sightings as an avoidance 
measure.''
    Comment 10: The IFAW points out that NMFS approves a number of 
other, more specific mitigation measures applicable to the Navy during 
right whale calving season in the ``Consultation Area''--a zone 
overlapping established right whale critical habitat. The IFAW points 
out that the condition in the proposed rule is that all of the measures 
qualified by the Navy will only be followed if ``consistent with 
essential mission, training, and operations.'' The IFAW states that 
these measures do not adequately address the potential harm to breeding 
right whales or mother/calf pairs.
    Response: NMFS does not agree with IFAW's statement. NMFS 
recognizes the significance of the NARW calving area and has explored 
ways of effecting the least practicable impact (which includes a 
consideration of practicality of implementation, safety of personnel 
and impacts to training fidelity) to right whales. Navy units will 
incorporate data from the Early Warning System (EWS) into exercise pre-
planning efforts. Fleet Area Control and Surveillance Facility, 
Jacksonville (FACSFACJAX) houses the Whale Fusion Center, which 
disseminates the latest right whale sighting information to Navy ships, 
submarines, and aircraft. Through the Fusion Center, FACSFACJAX 
coordinates ship and aircraft movement into the right whale critical 
habitat and the surrounding operating areas based on season, water 
temperature, weather conditions, and frequency of whale sightings and 
provides right whale reports to ships, submarines and aircraft, 
including coast guard vessels and civilian shipping. All sighting data 
is maintained on a Web site, http://www.facsfacjax.navy.mil.
    In addition, the following list of comprehensive mitigation 
measures will be implemented in the ``Consultation Area'' during North 
Atlantic right whale calving season:
    1. Naval vessels operating within North Atlantic right whale 
critical habitat and the Associated Area of Concern (AAOC) will 
exercise extreme caution and use slow safe speed, that is, the slowest 
speed that is consistent with essential mission, training, and 
operations.
    2. Exercise extreme caution and use slow, safe speed when a whale 
is sighted by a vessel or when the vessel is within 5 nm of a reported 
new sighting less than 12 hours old.
    3. Circumstances could arise where, in order to avoid North 
Atlantic right whale(s), speed reductions could mean vessels must 
reduce speed to a minimum at which it can safely keep on course (bare 
steerageway) or vessels could come to an all stop.
    4. During the North Atlantic right whale calving season north-south 
transits through the critical habitat are prohibited. Naval vessel 
transits through the area shall be in an east-west direction, and shall 
use the most direct route available during the calving season.
    5. Naval vessel operations (i.e., precision anchorage drills) in 
the North Atlantic right whale critical habitat and AAOC during the 
calving season will be undertaken during daylight and periods of good 
visibility, to the extent practicable and consistent with mission, 
training, and operation. When operating in the critical habitat and 
AAOC at night or during periods of poor visibility, vessels will 
operate as if in the vicinity of a recently reported NARW sighting.
    6. Command, Control and Communication:
     FACSFAC JAX shall coordinate ship/aircraft clearance into 
the operating area based on prevailing conditions, including water 
temperature, weather conditions, whale sighting data, mission or event 
to be conducted and other pertinent information. Commander Submarine 
Atlantic (COMSUBLANT) will coordinate any submarine operations that may 
require clearance with FACSFAC JAX. FASFAC JAX will provide data to 
ships and aircraft, including USCG if requested, and will recommend 
modifying, moving or canceling events as needed to prevent whale 
encounters. Commander Submarine Group Ten (COMSUBGRU TEN) will provide 
same information/guidance to subs.
     Prior to transiting or training in the critical habitat, 
ships will contact FASFAC JAX to obtain latest whale sighting and other 
information needed to make informed decisions regarding safe speed and 
path of their intended movement. Subs shall contact COMSUBGRU TEN for 
similar information. Ships and aircraft desiring to train/operate 
inside the critical habitat or within the warning/operating area shall 
coordinate clearance with FACSFAC JAX. Subs shall follow the same 
clearance procedures as ships and obtain clearance from CTF-82 
(COMSUBLANT).
     FACSFAC JAX will coordinate local procedures for whale 
data entry, update, retrieval and dissemination using joint maritime 
command information system. Ships, including those operated by USCG, 
not yet Officer in Tactical Command Information Exchange subsystem 
capable, will communicate via satellite communication, telephone system 
or international marine/maritime satellite.
    7. The only type of exercise that may be conducted inside the 
critical habitat and AAOC in calving season is precision anchorage 
drills and swept channel exercises. These exercises do not involve in 
detonations and do not introduce intense sound that is likely to result 
a take into the water column. Therefore, they are not expected to 
result in a take of marine mammals. In addition, use of the Shipboard 
Electronic System Evaluation Facility range is authorized with 
clearance and advice from FACSFAC JAX.
    NMFS believes that these measures can adequately protect the North 
Atlantic right whales in the ``Consultation Area'' during calving 
season.

Miscellaneous Issues

    Comment 11: The NRDC commented on the proposed rule with its 
earlier comments on the NMFS's 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 JAX 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 12: The IFAW and one private citizen expressed general 
opposition to Navy activities and NMFS's issuance of an MMPA 
authorization because of the danger of killing marine life.
    Response: NMFS appreciates the commenters' 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

[[Page 28361]]

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's effects 
assessments serve three 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 JAX Range Complex; thus, 
there would be no effect on 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. These analyses are discussed in the proposed rule 
(73 FR 76578; pages 76596-76597) 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 76578; pages 76597-76599). No changes to 
the modeling have been made except for those outlined in the Potential 
Impacts to Marine Mammal Species section of this document.

Take Calculations

    An overview of the Navy's modeling methods to determine the number 
of exposures of MMPA-protected species to sound likely to result in 
mortality, Level A harassment (injury), or Level B harassment is 
provided in the Federal Register notice for the proposed rule (73 FR 
76578; pages 76599-76600). No changes have been made to the modeling 
methods in the section of the proposed rule.
    As noticed in the proposed rule, the Navy's modeling revealed that 
only six marine mammal species (very few individuals of each) would be 
taken by Level A and Level B harassment. However, after further 
evaluation, NMFS concluded that because of the relatively high 
abundance of several species in the action area (e.g., Atlantic spotted 
dolphins, bottlenose dolphins, common dolphins, striped dolphins, 
Risso's dolphins, and pilot whales, minke whales, pantropical spotted 
dolphins, Kogia sp., and several species of beaked whales--Waring et 
al., 2008), and because some of these species tend to aggregate in 
relatively large groups, there is a reasonable probability that these 
species could be taken by Level B harassment. In addition, NMFS has 
increased the take estimates because of the aggregate social behavior 
of these species in large groups. Therefore, NMFS has included these 
species in our take estimates for the 5-year regulations. Revised 
estimates of potential takes from the proposed JAX Range Complex 
training activities are listed in Table 5.

 Table 5--Summary of Potential Takes From Explosive Ordnance (per Year)
               for Marine Mammals in the JAX Range Complex
------------------------------------------------------------------------
                                     Level B      Level A
             Species                harassment   harassment   Mortality
------------------------------------------------------------------------
Minke whale......................            3            0            0
Beaked whales....................           20            0            0
Kogia sp.........................            3            0            0
Pilot whale......................           20            0            0
Atlantic spotted dolphin.........           62            2            0
Bottlenose dolphin...............           30            0            0
Common dolphin...................           30            0            0
Striped dolphin..................           20            0            0
Clymene dolphin..................           20            0            0
Pantropical spotted dolphin......           20            0            0
Risso's dolphin..................           30            0            0
------------------------------------------------------------------------

Effects on Marine Mammal Habitat

    NMFS's JAX Range Complex proposed rule included a section that 
addressed the effects of the Navy's activities on marine mammal habitat 
(73 FR 76578, page 76600). Marine mammal habitat and prey species could 
be affected by the explosive ordnance testing and the sound generated 
by such activities. Based on the analysis contained in the Navy's FEIS 
and the information below, NMFS has determined that the JAX Range 
Complex training activities will not have adverse or long-term impacts 
on marine mammal habitat or prey species.
    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 could leave the area temporarily. Continental Shelf Inc. 
(2004) summarized a few studies

[[Page 28362]]

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. In 
most situations, cause of death in fish 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 fish are generally less 
susceptible to death or injury than small fish. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms. Orientation of fish relative to the shock wave may also affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) 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 variation in fish populations, including numbers, species, 
sizes, and orientation and range from the detonation point, makes it 
very difficult to accurately predict mortalities at any specific site 
of detonation. A total of 250 hours of explosive detonation events, 
each lasting approximately 1-8 hours, will be widely dispersed in the 
large JAX study area over the calendar year. Most fish species 
experience a large number of natural mortalities, especially during 
early life-stages, and any small level of mortality caused by the JAX 
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 JAX Range Complex are expected to be minimal 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 JAX Range 
Complex.

Effects on North Atlantic Right Whale Critical Habitat

    The coastal waters off Georgia and northern Florida within the JAX 
Range Complex Study Area are the only known calving ground for the 
North Atlantic right whale. Designated critical habitat, which 
encompasses the core of the calving ground, is essential to the 
conservation of this species. The Navy has proposed to largely avoid 
conducting any training in critical habitat, and only non-explosive 
activities will be conducted in the right whale critical habitat. The 
only training activity that would occur in the NARW critical habitat is 
the precision anchorage drill, which is a non-explosive event. This 
exercise requires the use of specially trained bridge watch teams (Sea 
Anchor Detail) and slow speeds. The objective is to drop anchor and 
stop the vessel at a precise geographic point. This exercise is 
typically done 3 to 8 miles from shore. The duration of this exercise 
is typically less than 1 hour. Therefore, NMFS believes that this 
training exercise will not adversely affect NARW critical habitat.
    In addition, FACSFACJAX coordinates Navy ship and aircraft 
clearance into the Northern Right Whale Critical Habitat and the 
surrounding Operating Area (OPAREA) based on season, water temperature, 
weather conditions, and frequency of whale sightings, and provides 
North Atlantic right whale sighting reports to ships, submarines and 
aircraft. Through coordination with the Florida Fish and Wildlife 
Conservation Commission (FWCC), Georgia Department of Natural Resources 
(GDNR), New England Aquarium Early Warning System (EWS) and others, 
FACSFACJAX organized a communications network and reporting system that 
ensures the widest possible exchange and dissemination of North 
Atlantic right whale sighting information to Department of Defense and 
civilian shipping.

Conclusion

    Based on the analyses and the aforementioned mitigation and 
monitoring measures for vessel transit in the North Atlantic right 
whale critical habitat in place, NMFS concluded that the Navy's 
activities would have minimal effects on marine mammal habitat, 
including the North Atlantic right whale critical habitat.

Analysis and Negligible Impact Determination

    Pursuant to NMFS's 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.), and 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 JAX Range Complex training activities. Taking the above 
into account, considering the sections discussed below, and dependent 
upon the implementation of the proposed mitigation measures, NMFS has 
determined that Navy training exercises utilizing underwater explosives 
will have a negligible impact on the affected marine mammal species and 
stocks present in the JAX Range Complex Study Area.
    NMFS's analysis of potential behavioral harassment, temporary 
threshold shifts, permanent threshold shifts, injury, and mortality to 
marine mammals as a result of the JAX Range Complex training activities 
was provided in the proposed rule (73 FR 76578, pages 76585-76591) and 
is described in more detail below.

Behavioral Harassment

    The Navy plans a total of 73 MISSILEX training events (each lasting 
for 1 hour), 10 FIREX training events (each lasting for 8 hours), 12 
MINEX training events (each lasting for 6-8 hours), and 8 small arms 
exercises events (each lasting for 1 hour) annually. The total training 
exercises proposed by the Navy in the JAX Range Complex amount to 
approximate 250 hours per year. These detonation events are widely 
dispersed throughout several of the designated sites within the JAX 
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 JAX

[[Page 28363]]

Range Complex Study Area and the implementation of monitoring and 
mitigation measures. Moreover, NMFS does not expect animals to 
experience repeated exposures to the same sound source as animals will 
likely move away from the source after being exposed. In addition, 
these isolated exposures, 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 
252-1,096 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 are reversible and 
animals' sensitivity is expected to be fully recovered 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 
detonations are extremely brief and the majority of most animals' 
vocalizations would not be masked. Therefore, masking effects from 
underwater detonations 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 2 Atlantic spotted dolphins could 
experience 50 percent tympanic membrane rupture or slight lung injury 
(Level A harassment) as a result of the training activities utilizing 
underwater detonation in the JAX 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 pre-defined zones of influence (ZOI) to experience Level A 
harassment. The injury zones vary from 0.02 km\2\ to 0.165 km\2\ (or at 
distances between 80 m to 230 m from the center of detonation) 
depending on the types of munition used and the season of the action. 
NMFS believes it is unlikely that any marine mammal could be undetected 
by lookouts/watchstanders or MMOs within such a small area during pre-
testing surveys. 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 3 
minke whales, 3 dwarf or pygmy sperm whales, 20 beaked whales, 20 pilot 
whales, 62 Atlantic spotted dolphins, 30 bottlenose dolphins, 20 
Clymene dolphins, 30 common dolphins, 20 pantropical spotted dolphins, 
30 Risso's dolphins, and 20 striped dolphins could be affected by Level 
B harassment (TTS and sub-TTS) as a result of the proposed JAX Range 
Complex training activities. These numbers represent approximately 
0.09%, 0.76%, 0.06%, 0.12%, 0.04%, 0.02%, 0.45%, 0.02%, 0.15%, and 
0.57% of minke whales, dwarf or pygmy sperm whales, pilot whales, 
Atlantic spotted dolphins, bottlenose dolphins, common dolphins, 
pantropical spotted dolphins, striped dolphins, Risso's dolphins, and 
beaked whales, respectively in the vicinity of the proposed JAX Range 
Complex Study Area (calculation based on NMFS 2007 U.S. Atlantic and 
Gulf of Mexico Marine Mammal Stock Assessment). Although the population 
estimate of Clymene dolphins is unknown in the proposed action area, 
NMFS considers the take of 20 individuals of this species by Level B 
harassment would have a negligible impact to this species because most 
of its 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 estimated Level A takes of 2 Atlantic spotted 
dolphins represent 0.0039% of this species in the vicinity of the 
proposed JAX Range Complex Study Area (calculation based on NMFS 2007 
U.S. 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 JAX Range Complex 
training activities will have a negligible impact on the marine mammal 
species and stocks present in the JAX 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

[[Page 28364]]

Navy training exercises in the JAX Range Complex would not have an 
unmitigable adverse impact on the availability of the affected species 
or stocks for subsistence use since there are no such uses in the 
specified area.

ESA

    There are six marine mammal 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: blue whale, fin whale, 
sei whale, humpback whale, North Atlantic right whale, and sperm whale.
    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 JAX 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 JAX 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 JAX 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.
    The Regulatory Flexibility Act (RFA) requires Federal agencies to 
prepare an analysis of a rule's impact on small entities whenever the 
agency is required to publish a notice of proposed rulemaking. However, 
a Federal agency may certify, pursuant to 5 U.S.C. 605(b), that the 
action will not have a significant economic impact on a substantial 
number of small entities. The Chief Counsel for Regulation of the 
Department of Commerce certified at the Proposed Rule stage. 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 final 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 JAX 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 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 is 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 JAX 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 in port and at-sea 
training. 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

[[Page 28365]]

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, Sonar, 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 part 218 is amended to 
read as follows:

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

0
1. The authority citation for part 218 continues to read as follows:

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

0
2. Subpart B is added to part 218 to read as follows:
Subpart B--Taking Marine Mammals Incidental to U.S. Navy Training in 
the Jacksonville Range Complex
Sec.
218.10 Specified activity and specified geographical area and 
effective dates.
218.11 Permissible methods of taking.
218.12 Prohibitions.
218.13 Mitigation.
218.14 Requirements for monitoring and reporting.
218.15 Applications for Letters of Authorization.
218.16 Letters of Authorization.
218.17 Renewal of Letters of Authorization and adaptive management.
218.18 Modifications to Letters of Authorization.

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


Sec.  218.10  Specified activity and 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 JAX Range Complex Operation Areas (OPAREAs), which 
are located along the southern east coast of the U.S. The two principal 
OPAREAs within the JAX Study Area are the Jacksonville OPAREA and the 
Charleston OPAREA (sometimes referred to collectively as the JAX/CHASN 
OPAREA, or simply the OPAREA). The northernmost point of the JAX/CHASN 
OPAREA is located just north of Wilmington, North Carolina (34[deg]37' 
N) in waters less than 20 m (65.6 ft) deep, while the easternmost 
boundary lies 281 nm (518.6 km) offshore of Jacksonville, Florida 
(77[deg]00' W in waters with a bottom depth of nearly 2,000 m [1.243 
mi]).
    (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) Mine Neutralization (20 lb NEW charges);
    (D) 5'' Naval Gunfire;
    (E) MK3A2 anti-swimmer concussion grenades.
    (ii) Training Events:
    (A) Mine Neutralization (20 lb NEW charges)--up to 60 exercises 
over the course of 5 years (an average of 12 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire 
missile)--up to 350 exercises over the course of 5 years (an average of 
70 per year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick)--up to 
15 exercises over the course of 5 years (an average of 3 per year);
    (D) FIREX with IMPASS--up to 50 exercises over the course of 5 
years (an average of 10 per year); and
    (E) Small Arms Training with MK3A2 anti-swimmer concussion grenade 
(0.5 lbs NEW)--up to 400 grenades over the course of 5 years (an 
average of 80 HE grenades used 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.  218.11  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 of this chapter and 218.16, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec.  218.10(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of this subpart and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  218.10(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.10(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually);
    (iii) Clymene dolphin (S. clymene)--100 (an average of 20 
annually);
    (iv) Atlantic spotted dolphin (S. frontalis)--310 (an average of 62 
annually);
    (v) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (vi) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (vii) Common dolphin (Delphinus delphis)--150 (an average of 30 
annually);
    (viii) Pilot whales (Globicephala sp.)--100 (an average of 20 
annually);
    (ix) Dwarf or pygmy sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (x) Beaked whales--100 (an average of 20 annually);
    (xi) Minke whales (Balaenoptera acutorostrata)--15 (an average of 3 
annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--10 (an average of 2 annually).
    (ii) [Reserved]


Sec.  218.12  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.11 and authorized 
by a Letter of Authorization issued under Sec.  216.106 of this chapter 
and Sec.  218.16, no person in connection with the activities described 
in Sec.  218.10 may:
    (a) Take any marine mammal not specified in Sec.  218.11(c);
    (b) Take any marine mammal specified in Sec.  218.11(c) other than 
by incidental take as specified in Sec.  218.11(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  218.11(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter and Sec.  218.16.

[[Page 28366]]

Sec.  218.13  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.10(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.16 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (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 & 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'' (the minimum speed 
at which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions 
with marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. 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 yds (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 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 JAX Range 
Complex OPAREA.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and 
operate at a slow, safe speed consistent with mission and safety during 
the months indicated below and within a 37 km (20 nm) arc (except as 
noted) of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and

[[Page 28367]]

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, except for 
Precision Anchoring drills and the Shipboard Electronic System 
Evaluation Facility range that necessarily operate at slow, safe speed.
    (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).
    (6) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods 
of poor visibility, vessels shall operate as if in the vicinity of a 
recently reported NARW sighting.
    (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 immediately. This report shall 
include the date, time, and location of the strike; vessel course and 
speed; operations being conducted by the vessel; weather conditions, 
visibility, and sea state; description of the whale; narrative of 
incident; and indication of whether photos/videos were taken. Navy 
personnel are encouraged to take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
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

[[Page 28368]]

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 as per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--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 death), the Navy shall suspend its 
activities immediately and report such incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds):
    (A) This activity shall only occur in Areas BB and CC, as specified 
in the Navy's LOA application, in the JAX Range Complex.
    (B) During North Atlantic right whale calving season no explosive 
ordnance shall be used.
    (C) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain a lookout dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (D) ``Big Eyes'' on the ship shall be used to monitor a 600 yard 
(548 m) buffer zone for marine mammals during naval-gunfire events.
    (E) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (F) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (G) FIREX with IMPASS shall take place during daylight hours only.
    (H) FIREX with IMPASS shall only be used in Beaufort Sea State 
three (3) or less.
    (I) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (J) No firing shall occur if marine mammals are detected within 70 
yards (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) 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 mammals 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.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) This activity shall only occur in Undet North and Undet South 
of the JAX 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.
    (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.
    (iv) Small Arms Training--Explosive hand grenades (such as the 
MK3A2 grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200 yd (182 m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the 
buffer zone is clear of marine mammals.


Sec.  218.14   Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter and Sec.  218.16 for activities described 
in Sec.  218.10(b) 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.  218.10(b) 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.  218.10(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the JAX 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. One of the vessel or aerial surveys should 
involve professionally trained marine mammal observers (MMOs).
    (ii) When 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

[[Page 28369]]

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.  218.14(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 shall be the same as those 
collected by Navy lookout/watchstanders described in Sec.  
218.14(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 JAX 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 JAX 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 JAX Range Complex 
Monitoring Plan. 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 
MMOs collecting marine mammal data pursuant to the JAX Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in Sec.  218.14(g). The JAX Range Complex 
Monitoring Plan Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan Reports from JAX Range 
Complex and multiple range complexes.
    (g) Annual JAX 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.
    (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 JAX Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) JAX 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 JAX Range 
Complex exercises for which annual reports are required (Annual JAX 
Range Complex Exercise Reports and JAX 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.

[[Page 28370]]

    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the JAX Range Complex 
Comprehensive Report, the Annual JAX Range Complex Exercise Report, or 
the Annual JAX 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 will 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.  218.15  Applications for Letters of Authorization.

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


Sec.  218.16  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  218.17.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  218.17  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.16 of this chapter for the activity identified in Sec.  218.10(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.15 shall be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
218.14; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.13 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.16 of this 
chapter were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 218.17 of this chapter 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 JAX Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.14(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.14(d)).
    (4) Results from specific stranding investigations (either from the 
JAX Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded 
by the Navy (described below) 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.  218.18  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.  216.106 of 
this chapter and Sec.  218.16 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  218.17, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  218.11(b), a Letter of 
Authorization issued pursuant to Sec.  216.106 of this chapter and 
Sec.  218.16 may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published 
in the Federal Register within 30 days subsequent to the action.

[FR Doc. E9-13698 Filed 6-8-09; 4:15 pm]
BILLING CODE 3510-22-P