9250 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AX86 

Taking of Marine Mammals Incidental 

to Specified Activities; Taking Marine 

Mammals Incidental to Training 

Operations Conducted Within the Gulf 

of Mexico Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

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 by the Navy’s 

Atlantic Fleet within the Gulf of Mexico 

(GOMEX) Range Complex for the period 

of April 2010 through April 2015. 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 February 17, 2011 

through February 17, 2016. 

ADDRESSES: A copy of the Navy’s 

application (which contains a list of the 

references used in this document), 

NMFS’ Record of Decision (ROD), and 

other documents cited herein may be 

obtained by writing to Michael Payne, 

Chief, Permits, Conservation and 

Education Division, Office of Protected 

Resources, National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910–3225 or by telephone 

via the contact listed here (see FOR

FURTHER INFORMATION CONTACT). 

Additionally, the Navy’s LOA 

application may be obtained by visiting 

the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm#applications. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext. 

137. 

SUPPLEMENTARY INFORMATION: 

Availability 

Extensive SUPPLEMENTARY

INFORMATION was provided in the 

proposed rule for this activity, which 

was published in the Federal Register 

on Tuesday, July 14, 2009 (74 FR 

33960). 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) if certain findings 

are made and regulations are issued or, 

if the taking is limited to harassment, 

notice of a proposed authorization is 

provided to the public for review. 

Authorization for incidental takings 

may 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.’’ 

With respect to military readiness 

activities, the MMPA defines 

‘‘harassment’’ as ‘‘(i) any act that injures 

or has the significant potential to injure 

a marine mammal or marine mammal 

stock in the wild [Level A Harassment]; 

or (ii) any act that disturbs or is likely 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where 

such behavioral patterns are abandoned 

or significantly altered [Level B 

Harassment].’’ 

Summary of Request 

On October 2, 2008, NMFS received 

an application from the Navy requesting 

an authorization for the take of marine 

mammal species/stocks incidental to the 

proposed training operations within the 

GOMEX Range Complex over the course 

of 5 years. On April 24, 2009, NMFS 

received additional information and 

clarification on the Navy’s proposed 

GOMEX Range Complex training 

activities. 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 GOMEX Range Complex 

Study Area. The Navy requests an 

authorization to take 17 species of 

cetaceans annually by Level B 

harassment, and 1 individual each of 

pantropical spotted dolphin and spinner 

dolphin by Level A harassment (injury). 

However, due to the implementation of 

the proposed mitigation and monitoring 

measures, NMFS believes that the actual 

take would be less than estimated by the 

Navy. 

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 

[(Bombing Exercise (Air-to-Surface) or 

BOMBEX (A–S), and Small Arms 

Training (explosive hand grenades)] and 

vessel movement to, from and within 

the GOMEX Range Complex Study Area. 

The narrative description of the action 

contained in the proposed rule (74 FR 

33960; July 14, 2009; pages 33961– 

33962) has not changed, except that the 

event duration for Small Arms Training 

was corrected to ‘‘1–2 hours’’ from ‘‘1 

hour’’ in Table 1 of the proposed rule 

(74 FR 33960; July 14, 2009; page 

33962). This change was to correct a 

typographical error in the proposed 

rule. Table 1 summarizes the nature and 

levels of these planned activities. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9251 

TABLE 1—LEVEL OF SURFACE WARFARE TRAINING ACTIVITIES PLANNED IN THE GOMEX RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Training area Potential time 

of day 

Event 

duration 

Bombing Exercise 

(BOMBEX) (Airto-Surface, AtSea).

F/A–18 .................. MK–83 [1,000-lb 

High Explosive 

(HE) bomb] 

415.8 lbs NEW.

1 event (4 bombs 

in succession).

BOMBEX Hotbox .. Daytime only ......... 1 hour. 

Small Arms Training Maritime Expeditionary Support 

Group (Various 

Small Boats).

MK3A2 anti-swimmer grenades (8- 

oz HE grenade) 

0.5 lb NEW.

6 events* (20 live 

grenades).

UNDET Area E3 ... Day or night .......... 1–2 hours. 

*An individual event can include detonation of up to 10 live grenades, but no more than 20 live grenades will be used per year.

Description of Marine Mammals in the 

Area of the Specified Activities 

Twenty-nine marine mammal species 

have confirmed or potential occurrence 

in the GOMEX Study Area. These 

include 28 cetacean species and 1 

sirenian species (DoN, 2007a), which 

can be found in Table 2. Although it is 

possible that any of the 29 species of 

marine mammals may occur in the 

Study Area, only 21 of those species are 

expected to occur regularly in the 

region. Most cetacean species are in the 

Study Area year-round (e.g., sperm 

whales and bottlenose dolphins), while 

a few (e.g., fin whales and killer whales) 

have accidental or transient occurrence 

in the area. The Description of Marine 

Mammals in the Area of the Specified 

Activities section has not changed from 

what was in the proposed rule (74 FR 

33960; July 14, 2009; pages 33962– 

33964). 

TABLE 2—MARINE MAMMAL SPECIES FOUND IN THE GOMEX RANGE COMPLEX

Family and scientific name Common name Federal 

status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

Eubalaena glacialis ..................................................................................................... North Atlantic right whale ........................ Endangered. 

Megaptera novaeangliae ............................................................................................ Humpback whale ..................................... Endangered. 

Balaenoptera acutorostrata ........................................................................................ Minke whale. 

B. brydei ..................................................................................................................... Bryde’s whale. 

B. borealis ................................................................................................................... Sei whale ................................................. Endangered. 

B. physalus ................................................................................................................. Fin whale ................................................. Endangered. 

B. musculus ................................................................................................................ Blue whale ............................................... Endangered. 

Suborder Odontoceti (toothed whales) 

Physeter macrocephalus ............................................................................................ Sperm whale ........................................... Endangered. 

Kogia breviceps .......................................................................................................... Pygmy sperm whale. 

K. sima ........................................................................................................................ Dwarf sperm whale. 

Ziphius cavirostris ....................................................................................................... Cuvier’s beaked whale. 

M. europaeus .............................................................................................................. Gervais’ beaked whale. 

M. bidens .................................................................................................................... Sowerby’s beaked whale. 

M. densirostris ............................................................................................................ Blainville’s beaked whale. 

Steno bredanensis ...................................................................................................... Rough-toothed dolphin. 

Tursiops truncatus ...................................................................................................... Bottlenose dolphin. 

Stenella attenuata ....................................................................................................... Pantropical spotted dolphin. 

S. frontalis ................................................................................................................... Atlantic spotted dolphin. 

S. longirostris .............................................................................................................. Spinner dolphin. 

S. clymene .................................................................................................................. Clymene dolphin. 

S. coeruleoalba ........................................................................................................... Striped dolphin. 

Lagenodephis hosei ................................................................................................... Fraser’s dolphin. 

Grampus griseus ........................................................................................................ Risso’s dolphin. 

Peponocephala electra ............................................................................................... Melon-headed whale. 

Feresa attenuata ........................................................................................................ Pygmy killer whale. 

Pseudorca crassidens ................................................................................................ False killer whale. 

Orcinus orca ............................................................................................................... Killer whale. 

G. macrorhynchus ...................................................................................................... Short-finned pilot whale.

Order Sirenia 

Trichechus manatus ................................................................................................... West Indian manatee .............................. Endangered. 


jlentini on DSKJ8SOYB1PROD with RULES
9252 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

Potential Impacts to Marine Mammal 

Species 

With respect to the MMPA, NMFS’ 

effects assessment on the consequences 

of the Navy’s proposed activities on 

marine mammals and their habitat 

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 GOMEX 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 underwater explosive 

detonations from BOMBEX and Small 

Arms Training with explosive hand 

grenades may potentially affect marine 

mammals (some of which NMFS would 

not classify as harassment). See 74 FR 

33960; July 14, 2009; pages 33964– 

33973. Marine mammals may 

experience direct physiological effects 

(such as threshold shift), acoustic 

masking, impaired communications, 

stress responses, and behavioral 

disturbance. The information contained 

in the Potential Impacts to Marine 

Mammal Species section regarding 

BOMBEX and Small Arms Training in 

the proposed rule has not changed. 

On April 20, 2010, explosion and fire 

on the Mobile Offshore Drilling Unit 

Deepwater Horizon MC252 

approximately 50 miles southeast of the 

Mississippi Delta led to the BP oil spill, 

which is the largest oil spill in U.S. 

history and potentially the second 

largest in world history. The oil 

wellhead leaked for 85 days and was 

capped on July 15, 2010. Impacts of this 

spill are far reaching, and include 

environmental, economic, and societal 

consequences. Wildlife and ecosystems 

are threatened primarily due to factors 

such as petroleum toxicity and oxygen 

depletion in the water. Marine species 

that live in the Gulf and in the 

marshlands surrounding the Gulf are at 

risk, including marine mammals. As of 

August 31, 2010, 88 dolphins and 1 

whale have been found stranded, 

including 4 dolphins that were visibly 

oiled. However, the proposed Navy’s 

GOMEX training exercises are not 

expected to further impact the physical 

marine ecosystem due to the nature of 

the activities. 

Below, in the Estimated Take of 

Marine Mammals Section, NMFS 

quantifies the potential effects to marine 

mammals from underwater detonation 

of explosives. In addition, NMFS relates 

such effects to the MMPA definitions of 

Level A and Level B Harassment. NMFS 

has also considered the effects of 

mortality on these species, although 

mortality is neither expected, nor will it 

be authorized. 

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 GOMEX Range Complex 

training activities described in the 

proposed rule are considered military 

readiness activities. 

NMFS reviewed the Navy’s proposed 

GOMEX Range Complex training 

activities and the proposed GOMEX 

Range Complex mitigation measures 

presented in the Navy’s application to 

determine whether the activities and 

mitigation measures were capable of 

achieving the least practicable adverse 

effect on marine mammals. 

Any mitigation measure prescribed by 

NMFS should be known to accomplish, 

have a reasonable likelihood of 

accomplishing (based on current 

science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 

(1) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals (2), (3), and (4) 

may contribute to this goal). 

(2) A reduction in the numbers of 

marine mammals (total number or 

number at a 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 (1), above, 

or to reducing harassment takes only). 

(3) A reduction in the number of 

times (total number or number at 

biologically important time or location) 

individuals would be exposed to 

underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to (1), above, or to reducing 

harassment takes only). 

(4) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to underwater detonations 

or other activities expected to result in 

the take of marine mammals (this goal 

may contribute to (1), above, or to 

reducing the severity of harassment 

takes only). 

(5) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(6) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (e.g., a buffer zone of a 5,100- 

yard radius be established and no 

bombing exercises would be initiated 

marine mammals are detected within 

the buffer zone, etc.). 

NMFS reviewed the Navy’s proposed 

mitigation measures, which included a 

careful balancing of the likely benefit of 

any particular measure to the marine 

mammals with the likely effect of that 

measure on personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

‘‘military-readiness activity.’’ 

The Navy’s proposed mitigation 

measures were described in detail in the 

proposed rule (74 FR 33960; July 14, 

2009; pages 33973–33975). The Navy’s 

measures address personnel training, 

lookout and watchstander 

responsibilities, operating procedures 

for training activities using underwater 

detonations of explosives (Bombing 

Exercises and Small Arms Training), 

and mitigation related to vessel traffic. 

No changes have been made to the 

mitigation measures described in the 

proposed rule. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9253 

Monitoring 

In order to issue an ITA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104 (a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(1) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the effects 

analyses such as whether marine 

mammals are adversely affected by the 

proposed Navy training exercises in the 

GOM Range Complex. 

(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. 

Monitoring Plan for the GOMEX Range 

Complex Study Area 

The Navy has provided NMFS with a 

copy of the draft GOMEX Range 

Complex Monitoring Plan. Additionally, 

NMFS and the Navy have incorporated 

a suggestion from the public, which 

recommended the Navy hold a 

workshop in 2011 to discuss the Navy’s 

Monitoring Plans for the multiple range 

complexes and training exercises in 

which the Navy would receive ITAs. 

The Navy must notify NMFS 

immediately (or as soon as clearance 

procedures allow) if the specified 

activity is thought to have resulted in 

the mortality or injury of any marine 

mammals, or in any take of marine 

mammals not identified in this 

document. 

The Navy must conduct all 

monitoring and/or research required 

under the Letter of Authorization, if 

issued. 

With input from NMFS, a summary of 

the monitoring methods required for use 

during training events in the GOMEX 

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 Navy shall visually survey a 

minimum of 1 explosive event per year. 

If possible, the event surveyed will be 

one involving multiple detonations. 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) could be used to determine 

if marine mammals are in the area 

before and/or after a detonation event. 

(D) When conducting a particular 

survey, the survey team shall collect: 

• Location of sighting; 

• Species (if not possible, indicate 

whale, dolphin or pinniped); 

• Number of individuals; 

• Whether calves were observed; 

• Initial detection sensor; 

• Length of time observers 

maintained visual contact with marine 

mammal; 

• Wave height; 

• Visibility; 

• Whether sighting was before, 

during, or after detonations/exercise, 

and how many minutes before or after; 

• Distance of marine mammal from 

actual detonations (or target spot if not 

yet detonated); 

• Observed behavior—Watchstanders 

will report, in plain language and 

without trying to categorize in any way, 

the observed behavior of the animal(s) 

(such as animal closing to bow ride, 

paralleling course/speed, floating on 

surface and not swimming etc.), 

including speed and direction; 

• Resulting mitigation 

implementation—Indicate whether 

explosive detonations were delayed, 

ceased, modified, or not modified due to 

marine mammal presence and for how 

long; and 

• If observation occurs while 

explosives are detonating in the water, 

indicate munitions type in use at time 

of marine mammal detection (e.g., were 

the 5-inch guns actually firing when the 

animals were sighted? Did animals enter 

an area 2 minutes after a huge explosion 

went off?). 

II. Passive Acoustic Monitoring 

The Navy is required to conduct 

passive acoustic monitoring when 

operationally feasible. 

(A) Any time a towed hydrophone 

array is employed during shipboard 

surveys the towed array shall be 

deployed during daylight hours for each 

of the days the ship is at sea. 

(B) The towed hydrophone array shall 

be used to supplement the ship-based 

systematic line-transect surveys for 

marine mammals (particularly for 

species such as beaked whales that are 

rarely seen). 

III. Marine Mammal Observers on Navy 

Platforms 

(A) MMOs selected for aerial or vessel 

surveys shall, to the extent practicable, 

be placed on a Navy platform during the 

exercises being monitored. 

(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. Instead, MMOs 

should be employed 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 


jlentini on DSKJ8SOYB1PROD with RULES
9254 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

has not been observed by the lookout, 

the MMO shall inform the lookout of the 

sighting, and the lookout shall take the 

appropriate action through the chain of 

command. 

(F) The MMOs shall collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. All MMO 

sightings shall be conducted according 

to a standard operating procedure. 

Information collected by MMOs should 

be the same as those collected by Navy 

lookout/watchstanders described above. 

The Monitoring Plan for the GOMEX 

Range Complex has been designed as a 

collection of focused ‘‘studies’’ 

(described fully in the GOMEX 

Monitoring Plan) to gather data that will 

allow the Navy to address the following 

questions: 

(A) What are the behavioral responses 

of marine mammals that are exposed to 

explosives? 

(B) Is the Navy’s suite of mitigation 

measures effective at avoiding injury 

and mortality of marine mammals? 

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 GOMEX 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 GOMEX Range 

Complex proposed rule included an 

adaptive management component and 

both NMFS and the Navy believe that a 

workshop would provide a means for 

the 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. Consequently, NMFS 

has determined that 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 year of monitoring pursuant to 

the GOMEX 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 GOMEX Range 

Complex, the Navy completed the 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan at the end of 2009. 

The ICMP was developed by the Navy, 

with the Chief of Naval Operations 

Environmental Readiness Division 

(CNO–N45) having the lead. The 

program does not duplicate the 

monitoring plans for individual areas 

(e.g., AFAST, HRC, SOCAL, VACAPES); 

instead it is intended to provide the 

overarching coordination that will 

support compilation of data from both 

range-specific monitoring plans as well 

as Navy funded research and 

development (R&D) studies. The Navy, 

through its ICMP will coordinate the 

monitoring programs’ progress towards 

meeting its goals and develop 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 

peer-reviewed newly published 

information. 

In combination with the 2011 

Monitoring Workshop and the adaptive 

management component of the GOMEX 

Range Complex rule and the other Navy 

rules (e.g. VACAPES Range Complex, 

Jacksonville Range Complex, etc.), the 

ICMP provides a framework for 

restructuring the monitoring plans and 

allocating monitoring effort based on the 

value of particular specific monitoring 

proposals (in terms of the degree to 

which results would likely contribute to 

stated monitoring goals, as well as the 

likely technical success of the 

monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating effort 

based on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across range 

complexes. 

The ICMP identified: 

• 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 GOMEX Range Complex 

rule. 

• Guidelines for prioritizing 

monitoring projects. 

If, as a result of the workshop and 

similar to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by rule), but rather focused on 

priority monitoring projects that are not 

necessarily tied to the geographic area 

addressed in the rule, the ICMP will be 

modified to include a very clear and 

unclassified record-keeping system that 

will allow NMFS and the public to see 

how each range complex/project is 

contributing to all of the ongoing 

monitoring programs (resources, effort, 

money, etc.). 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9255 

Adaptive Management 

NMFS has included an adaptive 

management component in the final 

regulations governing the take of marine 

mammals incidental to Navy training 

exercises in the GOMEX Range 

Complex. 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, if issued. 

The following are some of the 

possible sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from 

GOMEX 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 GOMEX 

Range Complex or other locations) 

• Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise) 

• Any verified information which 

reveals that marine mammals may have 

been taken in a manner, extent or 

number not authorized by these 

regulations or subsequent Letters of 

Authorization 

Mitigation measures could be 

modified or added (or deleted) if new 

data suggests that such modifications 

would have (or do not have) a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

proposed 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 proposed 

rule. The reporting requirements 

associated with this rule are designed to 

provide NMFS with monitoring data 

from the previous year to allow NMFS 

to consider the data 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 Measures 

In order to issue an ITA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. 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. Additional detail has been 

added to the reporting requirements 

since they were outlined in the 

proposed rule. The updated reporting 

requirements are all included below. A 

subset of the information provided in 

the monitoring reports may be classified 

and not releasable to the public. 

NMFS will work with the Navy to 

develop tables that allow for efficient 

submission of the information required 

below. 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

operational security allows) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing underwater explosive 

detonations or other activities. The 

Navy will provide NMFS with species 

or description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). 

Annual GOMEX 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 

GOMEX 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 

MMOs collecting marine mammal data 

pursuant to the GOMEX Range Complex 

Monitoring Plan shall, at a minimum, 

provide the same marine mammal 

observation data required in the major 

range complex training exercises section 

of the Annual GOMEX Range Complex 

Exercise Report referenced below. 

The GOMEX 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 GOMEX Range Complex 

Exercise Report 

The Navy is in the process of 

improving the methods used to track 

explosives used to provide increased 

granularity. The Navy will provide the 

information described below for all of 

their explosive exercises. Until the Navy 

is able to report in full the information 

below, they will provide an annual 

update on the Navy’s explosive tracking 

methods, including improvements from 

the previous year. 

(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 GOMEX 

Range Complex. 

(ii) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

GOMEX 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 GOMEX Range Complex exercises 

for which annual reports are required 

(Annual GOMEX Range Complex 

Exercise Reports and GOMEX Range 

Complex Monitoring Plan Reports). This 

report will be submitted at the end of 

the fourth year of the rule (March 2014), 

covering activities that have occurred 

through September 1, 2013. 

Comments and Responses 

On July 14, 2009, NMFS published a 

proposed rule (74 FR 33960) in response 

to the Navy’s request to take marine 

mammals incidental to military 

readiness training in the GOMEX Range 

Complex Study Area and requested 

comments, information and suggestions 

concerning the request. During the 30- 

day public comment period, NMFS 

received comments from 3 private 

citizens and from the Marine Mammal 

Commission (Commission). The 

comments are summarized and sorted 

into general topic areas and are 

addressed below. Full copies of the 

comment letters may be accessed at 

http://www.regulations.gov. 

MMPA Concerns 

Comment 1: The Commission 

recommended that NMFS require the 


jlentini on DSKJ8SOYB1PROD with RULES
9256 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

Navy to conduct an external peer review 

of its marine mammal density estimates, 

the data upon which those estimates are 

based, and the manner in which those 

data were used for that purpose. 

Response: As discussed in detail in 

the proposed rule (74 FR 33960; July 14, 

2009), marine mammal density 

estimates were based on the most recent 

data and information on the occurrence, 

distribution, and density of marine 

mammals. The updated density 

estimates presented in this assessment 

are derived from the Navy OPAREA 

Density Estimates (NODE) for the 

GOMEX Operation Area (OPAREA) 

(DoN, 2007). 

Density estimates for cetaceans were 

either modeled using available linetransect survey data or derived using 

cetacean abundance estimates found in 

the 2006 NOAA stock assessment 

reports (SARs) (Waring et al., 2007), 

which can be viewed at http:// 

www.nmfs.noaa.gov/pr/sars/ 

species.htm. The abundance estimates 

in the stock assessment reports are from 

Mullin and Fulling (2004). 

For the model-based approach, 

density estimates were calculated for 

each species within areas containing 

survey effort. A relationship between 

these density estimates and the 

associated environmental parameters 

such as depth, slope, distance from the 

shelf break, sea surface temperature 

(SST), and chlorophyll a (chl a) 

concentration was formulated using 

generalized additive models (GAMs). 

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 

Southeast Fisheries Science Center 

(SEFSC) between 1996 and 2004. 

Species-specific density estimates 

derived through spatial modeling were 

compared with abundance estimates 

found in the 2006 NOAA SARs 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). Subsequent 

revisions and draft reports were 

reviewed by these same parties. 

Therefore, NMFS considers that the 

density estimates, including the data 

upon which those estimates are based 

and the manner in which the data are 

collected and used, have already gone 

through an independent review process. 

Mitigation Measures 

Comment 2: The Commission 

recommends that NMFS require the 

Navy to develop and implement a plan 

to evaluate the effectiveness of 

monitoring and mitigation measures 

before beginning, or in conjunction 

with, the proposed military readiness 

training operations. 

Response: NMFS has been working 

with the Navy throughout the 

rulemaking process to develop a series 

of mitigation, monitoring, and reporting 

protocols. These mitigation, monitoring 

and reporting measures include, but are 

not limited to: (1) The use of trained 

shipboard lookouts who will conduct 

marine mammal monitoring to avoid 

collisions with marine mammals; (2) the 

use of exclusion zones that avoid 

exposing marine mammals to levels of 

sound likely to result in injury or death 

of marine mammals; (3) several 

cautionary measures to minimize the 

likelihood of ship strikes of marine 

mammals; (4) the use of MMOs/lookouts 

to conduct aerial and vessel-based 

surveys; and (5) annual monitoring 

reports and comprehensive reports to 

provide insights of impacts to marine 

mammals. 

NMFS has evaluated the effectiveness 

of the measures and has concluded they 

will result in the least practicable 

adverse impact on the affected marine 

mammal species or stocks and their 

habitat. For example, operations will be 

suspended if trained lookouts and/or 

MMOs detect marine mammals within 

the exercise’s specified exclusion zone 

in order to prevent marine mammal 

injury or mortality. In addition, prior to 

conducting training activities involving 

underwater explosive detonation, the 

Navy will be required to monitor the 

safety zones to ensure the areas are clear 

of marine mammals. Such monitoring 

will also be required during the exercise 

when operationally feasible. These 

monitoring and mitigation measures are 

expected to reduce the number of 

marine mammals exposed to 

underwater explosions. 

Over the course of the 5-year rule, 

NMFS will evaluate the Navy’s training 

activities annually to validate the 

effectiveness of the measures. NMFS 

will, through the established adaptive 

management process, work with the 

Navy to determine whether additional 

mitigation and monitoring measures are 

necessary. In addition, with the 

implementation of the ICMP Plan, and 

the planned Monitoring Workshop in 

2011, NMFS will work with the Navy to 

further improve its monitoring and 

mitigation plans for its future activities. 

Comment 3. The Commission 

recommends that NMFS require the 

Navy to describe the protocol for 

stranding network personnel to 

communicate with the Navy in the 

event of a stranding that is possibly 

associated with Navy activities. 

Response: As described in the 

proposed rule (74 FR 33960; July 14, 

2009), the Navy personnel will ensure 

that NMFS (regional stranding 

coordinator) is notified immediately (or 

as soon as operational security allows) 

if an injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing underwater explosive 

detonations. 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). This 

stranding communication protocol is 

similar to the protocol the Navy has for 

its Atlantic Fleet Active Sonar Training 

(AFAST). 

Comment 4: The Commission 

recommends that NMFS require the 

Navy to suspend an activity if a marine 

mammal is seriously injured or killed 

and the injury or death could be 

associated with the Navy’s activity. The 

injury or death should be investigated to 

determine the cause, assess the full 

impact of the activity or activities 

potentially implicated (e.g., the total of 

animals involved), and determine how 

the activity should be modified to avoid 

future injuries or deaths. 

Response: Though NMFS largely 

agrees with the principle espoused by 

the Commission, it should be noted that 

without detailed examination by an 

expert, it is usually not feasible to 

determine the cause of injury or 

mortality when an injured or dead 

marine mammal is sighted in the field. 

NMFS has included a requirement in 

the final rule that if there is clear 

evidence that a marine mammal is 

injured or killed as a result of the Navy’s 

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 through the Navy’s chain-ofcommand. 

For any other sighting of injured or 

dead marine mammals in the vicinity of 

any Navy training activities utilizing 

underwater explosive detonations for 

which the cause of injury or mortality 

cannot be immediately determined, the 

Navy personnel will ensure that NMFS 

(regional stranding coordinator) is 

notified immediately (or as soon as 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9257 

operational security allows). 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). 

Miscellaneous Issues 

Comment 5: Three private citizens 

expressed general opposition to Navy 

activities and NMFS’ issuance of an 

MMPA authorization because of the 

danger of killing marine life. 

Response: NMFS appreciates the 

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 

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 

With respect to the MMPA, NMFS’ 

effects assessment serves four primary 

purposes: (1) To prescribe the 

permissible methods of taking (i.e., 

Level B Harassment (behavioral 

harassment), Level A harassment 

(injury), or mortality, including an 

identification of the number and types 

of take that could occur by Level A or 

B harassment or mortality) and to 

prescribe other means of affecting the 

least practicable adverse impact on such 

species or stock and its habitat (i.e., 

mitigation); (2) to determine whether 

the specified activity will have a 

negligible impact on the affected species 

or stocks of marine mammals (based on 

the likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival); (3) to 

determine whether the specified activity 

will have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (however, 

there are no subsistence communities 

that would be affected in the GOMEX 

Range Complex Study Area, so this 

determination is inapplicable for this 

rulemaking); and (4) to prescribe 

requirements pertaining to monitoring 

and reporting. 

In the Estimated Take of Marine 

Mammals section of the proposed rule, 

NMFS related the potential effects to 

marine mammals from underwater 

detonation of explosives to the MMPA 

regulatory definitions of Level A and 

Level B Harassment and assessed the 

effects to marine mammals that could 

result from the specific activities that 

the Navy intends to conduct. The 

subsections of this analysis are 

discussed in the proposed rule (74 FR 

33960; July 14, 2009) 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 (74 FR 33960; July 14, 

2009). No changes have been made to 

the discussion contained in this section 

of the proposed rule. 

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 (74 

FR 33960; pages 33978–33979). No 

changes have been made to the 

modeling methods in the section of that 

proposed rule. 

As noticed in the proposed rule, the 

Navy’s modeling revealed that only 

eight marine mammal species (very few 

individuals of each) would be taken by 

Level A and Level B harassment. 

However, the Navy stated in its 

addendum to the LOA application, 

because of the relatively high 

abundance of several species (Bryde’s 

whales, Atlantic spotted dolphins, 

bottlenose dolphins, Clymene dolphins, 

false killer whales, Fraser’s dolphins, 

killer whales, two species of Kogia sp., 

melon-headed whales, pygmy killer 

whales, Risso’s dolphins, rough-toothed 

dolphins, short-finned pilot whales, 

striped dolphins, and several species of 

beaked whales) in the proposed action 

area (Waring et al., 2007) and the fact 

that some of these species aggregate in 

relatively large groups, the Navy 

considers that additional takes of these 

species by Level B behavioral 

harassment are possible. After reviewing 

the Navy’s request and consulting the 

most recent stock assessment reports of 

marine mammals in the proposed action 

area (Waring et al., 2009), NMFS largely 

agrees with the Navy except that NMFS 

considers that the take of Bryde’s and 

killer whales is unlikely due to their 

rarity in the Study Area. However, 

NMFS considers that the incidental take 

by Level B harassment of sperm whale 

is likely due to this species abundance 

in the Gulf of Mexico area. Therefore, 

NMFS has included additional species 

in our take estimates for the 5-year 

regulations. Revised estimates of 

potential takes from the proposed 

GOMEX Range Complex training 

activities are summarized in Table 3. 

TABLE 3—SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE

GOMEX RANGE COMPLEX

Marine mammal species Level B 

(non-injury) 

Level A (slight 

lung injury) Mortality 

Sperm whale ...................................................................................................................................... 5 0 0 

Atlantic spotted dolphin ..................................................................................................................... 20 0 0 

Beaked whales .................................................................................................................................. 20 0 0 

Bottlenose dolphin ............................................................................................................................. 30 0 0 

Clymene dolphin ................................................................................................................................ 20 0 0 

False killer whale ............................................................................................................................... 10 0 0 

Fraser’s dolphin ................................................................................................................................. 20 0 0 

Kogia sp. ............................................................................................................................................ 20 0 0 

Melon-headed whale ......................................................................................................................... 20 0 0 

Pantropical spotted dolphin ............................................................................................................... 26 1 0 

Pygmy killer whale ............................................................................................................................. 10 0 0 

Risso’s dolphin ................................................................................................................................... 30 0 0 

Rough-toothed dolphin ...................................................................................................................... 20 0 0 

Short-finned pilot whale ..................................................................................................................... 20 0 0 

Spinner dolphin .................................................................................................................................. 27 1 0 


jlentini on DSKJ8SOYB1PROD with RULES
9258 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

TABLE 3—SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE

GOMEX RANGE COMPLEX—Continued 

Marine mammal species Level B 

(non-injury) 

Level A (slight 

lung injury) Mortality 

Striped dolphin ................................................................................................................................... 20 0 0 

Effects on Marine Mammal Habitat 

NMFS’ GOMEX Range Complex 

proposed rule included a section that 

addressed the effects of the Navy’s 

activities on Marine Mammal Habitat 

(74 FR 33960; July 14, 2009; page 

33979). NMFS concluded that the 

Navy’s activities would have minimal 

effects on marine mammal habitat. No 

changes have been made to the 

discussion contained in this section of 

the proposed rule. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel 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 

GOMEX 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 GOMEX Range Complex 

Study Area. 

NMFS’ analysis of potential 

behavioral harassment, temporary 

threshold shifts, permanent threshold 

shifts, injury, and mortality to marine 

mammals as a result of the GOMEX 

Range Complex training activities was 

provided in the proposed rule (74 FR 

33960; July 14, 2009; pages 33965– 

33972) and is described in more detail 

below. 

Behavioral Harassment 

The Navy plans a total of 1 BOMBEX 

(Air-to-Surface) training event (each 

lasting for 1 hour) and 6 Small Arms 

Training (explosive hand grenades) 

events (each lasting for 1–2 hours) 

annually. The total training exercises 

using high explosives proposed by the 

Navy in the GOMEX Range Complex 

amount to approximately 13 hours per 

year. These detonation events are 

widely dispersed throughout several of 

the designated sites within the GOMEX 

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 

GOMEX 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 where the 

Level B behavioral harassment (i.e., 177 

dB re 1 microPa2-sec) threshold would 

propogate, 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 of recruitment or survival. 

TTS 

NMFS and the Navy have estimated 

that individuals of some species of 

marine mammals may sustain some 

level of temporary 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 midfrequency 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 sound exposure 

level (SEL). The threshold for the onset 

of TTS for detonations is a dual criteria: 

182 dB re 1 microPa2-sec or 23 psi, 

which might be received at distances 

from 345–2,863 m from the centers of 

detonation based on the types of net 

explosive weight (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 continuous exposures of almost 

an hour in duration or up to 217 SEL, 

almost all recovered within 1 day (or 

less, often in minutes), though in one 

study (Finneran et al., 2007), recovery 

took 4 days. 

• Although the degree of TTS 

depends on the received noise levels 

and exposure time, all studies show that 

TTS is reversible and the animal’s 

sensitivity is expected to recover fully 

in minutes to hours. Therefore, NMFS 

expects that TTS would not affect 

annual rates of recruitment or survival. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9259 

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 1 

pantropical spotted dolphin and 1 

spinner dolphin could experience 50- 

percent tympanic membrane rupture or 

slight lung injury (Level A harassment) 

as a result of the training activities 

utilizing underwater detonation by 

BOMBEX in the GOMEX Range 

Complex Study Area. However, these 

estimates do not take into consideration 

the proposed mitigation and monitoring 

measures. For underwater detonations, 

the animals have to be within an area 

between certain injury zones of 

influence (ZOI) to experience Level A 

harassment. Such injury ZOI varies from 

0.09 km2 to 4.98 km2 (or at distances 

between 169 m to 1,259 m from the 

center of detonation) depending on the 

types of munition used and the season 

of the action. Though it is possible that 

Navy observers could fail to detect an 

animal at a distance of more than 1 km 

(an injury ZOI during BOMBEX, which 

is planned to have 1 event annually), all 

injury ZOIs from small arms trainings 

are smaller than 0.1 km2 (178 m in 

radius) and NMFS believes it is unlikely 

that any marine mammal will be missed 

by lookouts/watchstanders or MMOs. 

As discussed previously, the Navy plans 

to utilize aerial or vessel surveys to 

detect marine mammals for mitigation 

implementation and indicated that they 

are capable of effectively monitoring 

safety zones. 

Based on these assessments, NMFS 

and the Navy determined that 

approximately 5 Sperm whales, 20 

Atlantic spotted dolphins, 20 beaked 

whales, 30 bottlenose dolphins, 20 

Clymene dolphins, 10 false killer 

whales, 20 Fraser’s dolphins, 20 pygmy 

or dwarf sperm whales, 20 melonheaded whales, 26 pantropical spotted 

dolphins, 10 pygmy killer whales, 30 

Risso’s dolphins, 20 rough-toothed 

dolphins, 27 spinner dolphins, 20 shortfinned pilot whales, and 20 striped 

dolphins could be affected by Level B 

harassment (TTS and sub-TTS) as a 

result of the proposed GOMEX Range 

Complex training activities. These 

numbers represent approximately 

0.30%, 0.07%, 0.81%, 0.30%, 2.57%, 

4.42%, 0.88%, 0.08%, 3.10%, 1.89%, 

0.75%, 2.79%, 1.36%, and 0.60% of 

sperm whales, Atlantic spotted 

dolphins, bottlenose dolphins (Gulf of 

Mexico oceanic stock), Clymene 

dolphins, false killer whales, pygmy or 

dwarf sperm whales, melon-headed 

whales, pantropical spotted dolphins, 

pygmy killer whales, Risso’s dolphins, 

rough-toothed dolphins, short-finned 

pilot whales, spinner dolphins, and 

striped dolphins, respectively in the 

vicinity of the proposed GOMEX Range 

Complex Study Area (calculation based 

on NMFS 2007 U.S. Atlantic and Gulf 

of Mexico Marine Mammal Stock 

Assessment). Although the population 

estimates of beaked whales and Fraser’s 

dolphins are unknown in the proposed 

action area, NMFS has concluded that 

the take of 20 individuals of beaked 

whales and Fraser’s dolphins by Level 

B harassment would have a negligible 

impact because most of its population 

exists beyond the project area and 

because they are a widely distributed 

species in the North Atlantic (Jefferson 

et al., 1993; Reeves et al., 2002). 

In addition, the Level A takes of 1 

pantropical spotted dolphin and 1 

spinner dolphin represent 0.0029% and 

0.0503% of these species, respectively, 

in the vicinity of the proposed GOMEX 

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 GOMEX Range Complex 

training activities will have a negligible 

impact on the marine mammal species 

and stocks present in the GOMEX Range 

Complex Study Area. 

Subsistence Harvest of Marine 

Mammals 

NMFS has determined that the 

issuance of 5-year regulations and 

subsequent LOAs (as warranted) for 

Navy training exercises in the GOMEX 

Range Complex would not have an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence use since there 

are no such uses in the specified area. 

ESA 

There are six ESA-listed marine 

mammal species that are listed as 

endangered under the ESA with 

confirmed or possible occurrence in the 

GOMEX Range Complex: humpback 

whale, North Atlantic right whale, fin 

whale, blue whale, sei 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 Navy 

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 GOMEX EIS. NMFS 

subsequently adopted the Navy’s EIS/ 

OEIS for the purpose of complying with 

the MMPA. 

Determination 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and dependent upon 

the implementation of the mitigation 

measures, NMFS finds that the total 

taking from Navy training exercises 

utilizing underwater explosives in the 

GOMEX Range Complex will have a 

negligible impact on the affected marine 

mammal 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 GOMEX Range 

Complex study area. NMFS has issued 

regulations for these exercises that 

prescribe the means of effecting the least 


jlentini on DSKJ8SOYB1PROD with RULES
9260 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

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 Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified at 

the proposed rule stage that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. The Navy is the sole entity that 

will be affected by this rulemaking. It is 

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. 

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: February 10, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 218 is amended as follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 218 

continues to read as follows: 

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

■ 2. Subpart D is added to part 218 to 

read as follows: 

Subpart D—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Gulf of Mexico Range Complex 

Sec. 

218.30 Specified activity and specified 

geographical area and effective dates. 

218.31 Permissible methods of taking. 

218.32 Prohibitions. 

218.33 Mitigation. 

218.34 Requirements for monitoring and 

reporting. 

218.35 Applications for Letters of 

Authorization. 

218.36 Letters of Authorization. 

218.37 Renewal of Letters of Authorization 

and adaptive management. 

218.38 Modifications to Letters of 

Authorization. 

Subpart D—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Gulf of Mexico Range Complex 

§ 218.30 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 GOMEX Range Complex 

Operation Areas (OPAREAs), which is 

located along the Gulf of Mexico coast 

of the U.S. described in Figures 1 and 

2 of the LOA application and consists of 

the BOMBEX Hotbox (surface and 

subsurface waters), located off the 

Alabama and Florida coast, south of 

NAS Pensacola, and underwater 

detonation (UNDET) Area E3 (surface 

and subsurface waters), located within 

the territorial waters off Padre Island, 

Texas, near Corpus Christi NAS. 

(1) The northernmost boundary of the 

BOMBEX Hotbox is located 23 nm (42.6 

km) from the coast of the Florida 

panhandle at latitude 30° N, the eastern 

boundary is approximately 200 nm 

(370.4 km) from the coast of the Florida 

peninsula at longitude 86°48’ W. 

(2) The UNDET Area E3 is a defined 

surface and subsurface area located in 

the waters south of Corpus Christi NAS 

and offshore of Padre Island, Texas. The 

westernmost boundary is located 7.5 nm 

(13.9 km) from the coast of Padre Island 

at 97°9′33′′ W and 27°24′26′′ N at the 

Westernmost corner. It lies entirely 

within the territorial waters (0 to 12 nm, 

or 0 to 22.2 km) of the U.S. and the 

majority of it lies within Texas state 

waters (0 to 9 nm, or 0 to 16.7 km). It 

is a very shallow water training area 

with depths ranging from 20 to 26 m. 

(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 identified in paragraph 

(c)(1)(i) of this section conducted as part 

of the training events identified in 

paragraph (c)(1)(ii) of this section: 

(i) Underwater Explosives: 

(A) MK–83 (1,000 lb High Explosive 

bomb); 

(B) MK3A2 anti-swimmer concussion 

grenades (0.5 lbs NEW). 

(ii) Training Events: 

(A) BOMBEX (Air-to-Surface)—up to 

5 events over the course of 5 years (an 

average of 1 event per year, with 4 

bombs in succession for each event); 

(B) Small Arms Training with MK3A2 

anti-swimmer concussion grenades—up 

to 30 events over the course of 5 years 

(an average of 6 events per year, with up 

to 10 live grenades authorized per event, 

but no more than 20 live grenades will 

be used per year). 

(2) [Reserved] 

(d) Regulations are effective February 

17, 2011 through February 17, 2016. 

§ 218.31 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 of this 

chapter and 218.36, the Holder of the 

Letter of Authorization may incidentally 

take marine mammals within the area 

described in § 218.30(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 

§ 218.30(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 § 218.30(c) is limited to the following 

species, by the indicated method of take 

and the indicated number of times: 

(1) Level B Harassment: 

(i) Sperm whale (Physeter 

macrocephalus)—25 (an average of 5 

annually); 

(ii) Beaked whales—100 (an average 

of 20 annually); 

(iii) Bottlenose dolphin (Tursiops 

truncatus)—150 (an average of 30 

annually); 

(iv) Pantropical spotted dolphin 

(Stenella attenuata)—130 (an average of 

26 annually); 

(v) Clymene dolphin (S. clymene)— 

100 (an average of 20 annually); 

(vi) Atlantic spotted dolphin (S. 

frontalis)—100 (an average of 20 

annually); 

(vii) Spinner dolphin (S. 

longirostris)—135 (an average of 27 

annually); 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9261 

(viii) Striped dolphin (S. 

coeruleoalba)—100 (an average of 20 

annually); 

(ix) Risso’s dolphin (Grampus 

griseus)—150 (an average of 30 

annually); 

(x) Melon-headed whales 

(Peponocephala electra)—100 (an 

average of 20 annually); 

(xi) False killer whale (Pseudorca 

crassidens)—50 (an average of 10 

annually); 

(xii) Fraser’s dolphin (Lagenodelphis 

hosei)—100 (an average of 20 annually); 

(xiii) Pygmy or dwarf sperm whales 

(Kogia sp.)—100 (an average of 20 

annually); 

(xiv) Pygmy killer whale (Ferresa 

attenuatta)—50 (an average of 10 

annually); 

(xv) Rough-toothed dolphin (Steno 

bredanensis)—100 (an average of 20 

annually); 

(xvi) Short-finned pilot whale 

(Globicephala macrorhynchus)—100 (an 

average of 20 annually). 

(2) Level A Harassment (injury): 

(i) Pantropical spotted dolphin—5 (an 

average of 1 annually); 

(ii) Spinner dolphin—5 (an average of 

1 annually); 

§ 218.32 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.31 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.36, no person in connection 

with the activities described in § 218.30 

may: 

(a) Take any marine mammal not 

specified in § 218.31(c); 

(b) Take any marine mammal 

specified in § 218.31(c) other than by 

incidental take as specified in 

§ 218.31(c)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.31(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 § 216.106 of this chapter 

and § 218.36. 

§ 218.33 Mitigation. 

(a) When conducting training 

activities identified in § 218.30(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§ 216.106 of this chapter and § 218.36 

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 onthe-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 fivedegree 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-yd (183 m) of 

marine mammals other than whales 

(whales addressed above). 


jlentini on DSKJ8SOYB1PROD with RULES
9262 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

(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 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 the death), 

the Navy shall suspend its activities 

immediately and report such incident to 

NMFS. 

(i) Air-to-Surface At-Sea Bombing 

Exercises (1,000-lbs explosive bombs): 

(A) This activity shall only occur in 

W–155A/B (hot box) area of the GOMEX 

Range Complex OPAREA. 

(B) Aircraft shall visually survey the 

target and buffer zone for marine 

mammals prior to and during the 

exercise. The survey of the impact area 

shall be made by flying at 1,500 ft (457 

m) altitude or lower, if safe to do so, and 

at the slowest safe speed. Release of 

ordnance through cloud cover is 

prohibited; aircraft must be able to 

actually see ordnance impact areas. 

(C) A buffer zone of a 5,100-yard 

(4,663-m) radius shall be established 

around the intended target zone. The 

exercises shall be conducted only if the 

buffer zone is clear of marine mammals. 

(D) At-sea BOMBEXs using live 

ordnance shall occur during daylight 

hours only. 

(ii) 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. 

(b) [Reserved] 

§ 218.34 Requirements for monitoring and 

reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.36 

for activities described in § 218.30(c) is 

required to cooperate with the NMFS 

when monitoring the impacts of the 

activity on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.30(c) is thought to have resulted in 

the mortality or serious injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 218.31(c). 

(c) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the GOMEX 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 1 

explosive event per year. One of the 

vessel or aerial surveys should involve 

professional trained marine mammal 

observers (MMOs). If it is impossible to 

conduct the required surveys due to 

lack of training exercises, the missed 

annual survey requirement shall roll 

into the subsequent year to ensure that 

the appropriate number of surveys (i.e., 

total of five) occurs over the 5-year 

period of effectiveness of this subject. 

(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 

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 munitions 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 should 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 § 218.34(c)(1), 

MMOs who are selected for aerial or 

vessel surveys shall, to the extent 

practicable, be placed on a Navy 

platform during the exercises being 

monitored. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 9263 

(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. Instead, MMOs 

should be employed 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 should be the same 

as those collected by the survey team 

described in § 218.34(c)(1)(iv). 

(d) 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). 

(e) Annual GOMEX 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 GOMEX Range Complex 

Monitoring Plan. Data collection 

methods shall be standardized across 

range complexes to allow for 

comparison in different geographic 

locations. Although additional 

information will also be gathered, the 

MMOs collecting marine mammal data 

pursuant to the GOMEX Range Complex 

Monitoring Plan shall, at a minimum, 

provide the same marine mammal 

observation data required in 

§ 218.34(c)(1)(iv). The GOMEX Range 

Complex Monitoring Plan Report may 

be provided to NMFS within a larger 

report that includes the required 

Monitoring Plan Reports from GOMEX 

Range Complex and multiple range 

complexes. 

(f) Annual GOMEX Range Complex 

Exercise Report—The Navy shall 

provide the information described 

below for all of their explosive 

exercises. Until the Navy is able to 

report in full the information below, 

they shall provide an annual update on 

the Navy’s explosive tracking methods, 

including improvements from the 

previous year. 

(1) Total annual number of each type 

of explosive exercise (of those identified 

as part of the ‘‘specified activity’’ in this 

final rule) conducted in the GOMEX 

Range Complex. 

(2) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

(g) GOMEX 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 GOMEX Range 

Complex exercises for which annual 

reports are required (Annual GOMEX 

Range Complex Exercise Reports and 

GOMEX Range Complex Monitoring 

Plan Reports). This report shall be 

submitted at the end of the fourth year 

of the rule (February 2015), covering 

activities that have occurred through 

August 1, 2014. 

(h) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

GOMEX Range Complex Comprehensive 

Report, the Annual GOMEX Range 

Complex Exercise Report, or the Annual 

GOMEX 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. 

(i) In 2011, the Navy shall convene a 

Monitoring Workshop in which the 

Monitoring Workshop participants will 

be asked to review the Navy’s 

Monitoring Plans and monitoring results 

and make individual recommendations 

(to the Navy and NMFS) of ways of 

improving the Monitoring Plans. The 

recommendations shall be reviewed by 

the Navy, in consultation with NMFS, 

and modifications to the Monitoring 

Plan shall be made, as appropriate. 

§ 218.35 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

citizen (as defined by § 216.103 of this 

chapter) conducting the activity 

identified in § 218.30(a) (the U.S. Navy) 

must apply for and obtain either an 

initial Letter of Authorization in 

accordance with § 218.36 or a renewal 

under § 218.37. 

§ 218.36 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 § 218.37. 

(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). 

§ 218.37 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under §§ 216.106 and 218.36 of this 

chapter for the activity identified in 

§ 218.30(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.35 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 § 218.34; and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.33 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.36 of this chapter, 

were undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 


jlentini on DSKJ8SOYB1PROD with RULES
9264 Federal Register / Vol. 76, No. 33 / Thursday, February 17, 2011 / Rules and Regulations 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 218.37 of this chapter 

indicates that a substantial modification 

to the described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, the NMFS 

will provide the public a period of 30 

days for review and comment on the 

request. Review and comment on 

renewals of Letters of Authorization are 

restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from GOMEX Study Area or 

other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.34(j)). 

(3) Results from specific stranding 

investigations (either from the GOMEX 

Range Complex Study Area or other 

locations). 

(4) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(5) 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. 

§ 218.38 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 §§ 216.106 and 218.36 of 

this chapter 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 § 218.37, 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 wellbeing of the species or stocks of marine 

mammals specified in § 218.30(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 218.36 of this chapter 

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. 2011–3629 Filed 2–16–11; 8:45 am] 

BILLING CODE 3510–22–P 


jlentini on DSKJ8SOYB1PROD with RULES