[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Notices]
[Pages 72807-72815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29808]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XZ98


Taking of Marine Mammals Incidental to Specified Activities; U.S. 
Marine Corps Training Exercises at Air Station Cherry Point

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the U.S. Marine Corps 
(USMC) to take marine mammals, by Level B harassment only, incidental 
to military training exercises at Marine Corps Air Station (MCAS) 
Cherry Point Range Complex, North Carolina. The USMC's activities are 
considered military readiness activities pursuant to the MMPA, as 
amended by the National Defense Authorization Act (NDAA) for Fiscal 
Year 2004.

DATES: Effective December 1, 2010-November 30, 2011.

ADDRESSES: A copy of the IHA and the application are available 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, 
telephoning the contact listed below (see FOR FURTHER INFORMATION 
CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The following associated documents are also 
available at the same internet address: Environmental Assessment MCAS 
Cherry Point Range Operations (USMC 2009) and the associated Finding of 
No Significant Impact (FONSI). Documents cited in this notice may also 
be viewed, by appointment, during regular business hours, at the 
aforementioned address.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 713-2289.

[[Page 72808]]


SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce 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 certain 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

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

Summary of Request

    On August 6, 2009, NMFS received an application from the USMC 
requesting an IHA for the take, by harassment only, of Atlantic 
bottlenose dolphins (Tursiops truncatus) incidental to air-to-surface 
and surface-to-surface training exercises conducted around two bombing 
targets (BTs) within southern Pamlico Sound, North Carolina, at MCAS 
Cherry Point. In summary, weapon delivery training will occur at two 
BTs: Brant Island Target (BT-9) and Piney Island Bombing Range (BT-11). 
Training at BT-9 will involve air-to-surface (from aircraft to in-water 
targets) and surface-to-surface (from vessels to in-water targets) 
warfare training, including bombing, strafing, special (laser systems) 
weapons; surface fires using non-explosive and explosive ordnance; and 
mine laying exercises (inert). Training at BT-11 will involve air-to-
surface exercises to provide training in the delivery of conventional 
(non-explosive) and special (laser systems) weapons. Surface-to-surface 
training by small (i.e., 24-85 ft) military watercraft will also be 
executed here. The types of ordnances proposed for use at BT-9 and BT-
11 include small arms, large arms, bombs, rockets, missiles, and 
pyrotechnics. All munitions used at BT-11 are inert practice rounds. No 
live firing occurs at BT-11. Training for any activity may occur year-
round, day or night. Active sonar is not a component of these specified 
training exercises; therefore, no harassment from active sonar is 
covered by the IHA.

Description of the Specified Activity

    All inert and live-fire exercises at MCAS Cherry Point are 
conducted so that all ammunition and other ordnances strike and/or fall 
on the land or water based target or within the existing danger zones 
or water restricted areas. The BTs are located at the convergence of 
the Neuse River and Pamlico Sound, North Carolina. Military training 
activities at the BTs include gunnery; mine laying; bombing; or rocket 
exercises and are classified into two categories here based on delivery 
method: (1) Surface-to-surface gunnery and (2) air-to-surface bombing. 
Exercises may occur year round, day or night (less than 15 percent of 
training occurs at night).
    Surface-to-surface fires are fires from boats at sea to targets at 
sea. These can be direct (targets are within sight) or indirect 
(targets are not within sight). Gunnery exercise employing direct fire 
is the only category of surface-to-surface activity currently conducted 
within MCAS Cherry Point. There are four types of air-to-surface 
activities conducted within the MCAS Cherry Point BTs: Inert mine 
laying; bombing; gunnery; and rocket exercises which are carried out 
via fixed wing or rotary wing aircraft. High explosive ordnance is used 
only at BT-9. Based on 2007 data, the USMC would conduct approximately 
1,539 aircraft-based and 165 vessel-based sorties, annually, at BT-9 
and approximately 6,727 aircraft-based and 51 vessel-based sorties, 
annually, at BT-11. The standard sortie consists of two aircraft per 
bombing run or an average of two and maximum of six vessels. A complete 
description of these military readiness activities, including the type 
and amount of ammunition used during training, is available in the 
proposed Federal Register notice for this action (75 FR 32398; June 8, 
2010).

Description of Marine Mammals in the Area of the Specified Activity

    Only one marine mammal species, the bottlenose dolphin, occurs 
within Pamlico Sound around the BTs. The endangered West Indian manatee 
(Trichechus manatus) has been sighted rarely (Lefebvre et al., 2001; 
DoN, 2003) within Pamlico Sound; however, the U.S. Fish and Wildlife 
Service oversees management of this species. Therefore, authorization 
to harass West Indian manatees is not included in any NMFS' 
authorization and will not be discussed further.
    Four out of seven designated coastal stocks of the Atlantic 
bottlenose dolphin may occur in North Carolina waters at some part of 
the year: The Northern Migratory stock (NM; winter); the Southern 
Migratory stock (SM; winter); the Northern North Carolina Estuarine 
stock (NNCE; resident, year round); and the more recently identified 
Southern North Carolina stock (SNC; resident, year round). Dolphins 
encountered at the BTs likely belong to the NNCE and SNC stock; 
however, this may not always be the case. NMFS' 2008 stock assessment 
report provides further detail on stock delineation. All stocks 
discussed here are considered Depleted under the MMPA (Waring et al., 
2007).
    In Pamlico Sound, bottlenose dolphins concentrate in shallow water 
habitats along shorelines, and few, if any, individuals are present in 
the central portions of the sounds (Gannon, 2003; Read et al., 2003a, 
2003b). Fine-scale dolphin abundance and density studies have been 
conducted in Pamlico Sound via aerial and boat based surveys (Read et 
al., 2003; Mayer, 2003; Goodman et al., 2007). Read et al. (2007) also 
conducted passive acoustic monitoring to determine dolphin

[[Page 72809]]

presence around the BTs. The survey resulted in varying abundance and 
density estimates; however, in general, abundance was higher in summer 
than winter, density estimates ranged from 0.09 to 0.18 dolphins/km\2\, 
and abundance around BT-11 was greater than BT-9. A complete 
description of bottlenose dolphin biology and ecology within Pamlico 
Sound can be found in the proposed IHA Federal Register notice prepared 
for this action (75 FR 32398; June 8, 2010).

Effects on Marine Mammals

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as:

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

    The USMC and NMFS have determined that harassment to marine mammals 
(specifically, bottlenose dolphins) may occur incidental to noise and 
detonations related to munitions firing on the BTs. These military 
readiness activities will result in increased noise levels, explosions, 
and munition debris within bottlenose dolphin habitat. In the absence 
of planned mitigation and monitoring measures, it is possible that 
injury or mortality of bottlenose dolphins could occur; however, due to 
the implementation of the planned measures, NMFS does not anticipate 
that harassment would rise to the level of injury (Level A harassment) 
or mortality. Therefore, the IHA solely authorizes Level B (behavioral) 
harassment incidental to the USMC's training activities. NMFS 
anticipates that bottlenose dolphins may undergo temporary threshold 
shift, masking, stress response, and altered behavioral patterns (e.g., 
traveling, resting, opportunistic foraging). A complete description of 
these impacts is available in the proposed IHA Federal Register notice 
prepared for this action (75 FR 32398, June 8, 2010).

Effects on Marine Mammal Habitat

    Detonations of live ordnance will result in temporary modification 
to physical water properties. Munitions are designed to hit the targets 
and not explode in-water; however, because the targets are on the water 
(e.g., ship hull on shoals); in-water explosions may occur. Such 
explosions will result in the release of gaseous by-products and 
creation of oscillating bubbles. Should a high-explosive miss the 
target and explode in-water, a small water plume may erupt. However, 
these impacts will be temporary and not expected to last more than a 
few seconds. Any direct hit on the targets are not expected to cause 
the aforementioned effects as the target would absorb the impact.
    Similarly, no long term impacts with regard to hazardous 
constituents are expected to occur. MCAS Cherry Point has an active 
Range Environmental Vulnerability Assessment (REVA) program in place to 
monitor impacts to habitat from its activities. One goal of REVA is to 
determine the horizontal and vertical concentration profiles of heavy 
metals, explosives constituents, perchlorate nutrients, and dissolved 
salts in the sediment and seawater surrounding BT-9 and BT-11. Results 
of recent sampling indicate that explosive constituents (e.g., 
trinitrotoluene (TNT), cyclotrimethylenetrinitramine (RDX), and 
hexahydro-trinitro-triazine (HMX) were not detected in any sediment or 
water sample surrounding the BTs. Metals were not present above 
toxicity screening values. Perchlorate was detected in a few sediment 
samples above the detection limit (0.21 ppm), but below the reporting 
limit (0.6 ppm). The ongoing REVA would continue to evaluate potential 
migration of munitions constituents from operational range areas to 
off-range areas and MCAS Cherry Point would continue to implement 
mitigation measures as necessary.
    In summary, in the absence of planned mitigation and monitoring 
measures, the potential exists for negative effects on marine mammal 
habitat. However, because dolphins are not expected to be in the 
immediate area during live firing, due to monitoring and mitigation 
measure implementation (discussed later in this document), they will 
not be subject to any short term habitat alterations caused by in-water 
and near-water explosions. REVA has found no significant impact on 
habitat from the USMC's training activities and the ongoing REVA will 
continue to evaluate potential migration of munitions constituents from 
operational range areas to off-range areas and MCAS Cherry Point would 
continue to implement mitigation measures as necessary. Therefore, the 
impacts to marine mammal habitat will be minimal.

Comments and Responses

    On June 8, 2010, NMFS published in the Federal Register a notice of 
a proposed IHA for the taking of marine mammals incidental to the 
USMC's training exercises at MCAS Cherry Point and requested comments 
regarding this request (75 FR 32389). NMFS also sent the proposed IHA 
notice to the Marine Mammal Commission (Commission). The Federal 
Register notice also made the USMC's Environmental Assessment ``MCAS 
Cherry Point Range Operations'' available for public comment. During 
the 30-day public comment period, NMFS received comments from the 
Commission on the application and proposed IHA, and has evaluated and 
considered those comments in the course of making the necessary 
findings under the MMPA Section 101(a)(5)(D) as well as determining 
whether or not to issue a FONSI under NEPA. No additional public 
comment was received.
    Comment 1: The Commission recommends that, before issuing the IHA, 
NMFS require the USMC to (1) describe in detail the environmental 
parameters and methods used to estimate the number of exposures and 
determine the safety zones; (2) justify its use of the bottlenose 
dolphin density found in Read et al. (2007) or recalculate its 
estimated exposures based on Maher (2003); and (3) use either direct 
strike or dynamic Monte Carlo models to determine the probability of 
ordnance strike.
    Response: NMFS disagrees with the Commission's statements that the 
methods used by the USMC to derive safety zones, take, and estimate 
strike probability were lacking or inadequate. The USMC's application 
describes how safety zones were derived (based on NMFS explosive 
harassment criteria) and concluded that Level A harassment could occur 
at distances around 200 m (656 ft) from the target, based on a 
threshold of 13 psi-msec. However, the USMC will establish a ``no 
fire'' zone for a 1,000 m (3,281 ft) radius around BT-9, or anywhere 
within Raritan Bay at BT-11, providing a conservative approach to 
bottlenose dolphin safety.
    The Commission recommended ``direct strike or dynamic Monte Carlo 
methods'' while admitting that the result of using a new risk 
probability model would likely provide negligible changes from the 
model described in the application. The Commission did not provide 
further guidance on how to calculate risk from a Monte Carlo method 
and, because any change would be negligible, NMFS does not agree that 
this alternative method of modeling is

[[Page 72810]]

necessary for purposes of issuing an MMPA incidental take 
authorization.
    With respect to the Commission's comments on density estimates used 
in the application, as described in the proposed IHA Federal Register 
notice, various Pamlico Sound bottlenose dolphin density estimates are 
available based on survey season and year. To be conservative, the USMC 
used the highest, albeit slightly older, density estimate (0.183 
dolphins/km\2\) available to calculate take estimates. This estimate 
does not differ greatly from other density estimates (approximately 
0.11 dolphin/km\2\) and the USMC's conservative approach was considered 
acceptable by NMFS.
    Comment 2: The Commission also requested that detailed mitigation, 
monitoring, and reporting requirements be specified in the application 
and that NMFS should withhold the authorization until the USMC develops 
and is prepared to implement a plan to evaluate the effectiveness of 
monitoring and mitigation measures before beginning or, at the very 
least, in conjunction with, conducting exercises covered by the 
proposed IHA.
    Response: NMFS worked closely with the USMC during the application 
process to develop proper mitigation, monitoring, and reporting 
requirements designed to minimize and detect impacts from the specified 
activities. In order to ensure that NMFS can make the findings 
necessary for issuance of an IHA, NMFS worked with the USMC to develop 
more comprehensive and acceptable mitigation, monitoring, and reporting 
requirements. As a result, the USMC prepared a Marine Mammal and 
Protected Species Monitoring Plan (Plan) and additional monitoring and 
mitigation measures are contained within the IHA and this notice. NMFS 
has determined that the Plan and additional monitoring and mitigation 
measures are adequate to satisfy the requirements of the MMPA.
    Comment 3: The Commission recommended NMFS condition the 
authorization, if issued, to require the suspension of the exercises if 
a marine mammal is seriously injured or killed and if the injury or 
death is associated with the exercises.
    Response: NMFS's issuance of an IHA allows the applicant to take 
marine mammals (specifically, bottlenose dolphins) incidental to 
specified activities. NMFS has the authority, under the MMPA, to 
modify, suspend, or revoke an authorization if, among other things, the 
methods of taking exceed those authorized. Specific to the USMC IHA, no 
take by Level A harassment, injury, or death is authorized in the IHA. 
Furthermore, the IHA is conditioned such that, if there is evidence 
that a marine mammal has been stranded, injured or killed as a direct 
result of target operations, the USMC would immediately suspend those 
activities within the specific target area and re-evaluate the presence 
of dolphins around the specific target. The incident would be 
immediately reported to the USMC's Range Management Office and NMFS' 
Stranding Network and Office of Protected Resources.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(D) of the MMPA, NMFS must set forth the ``permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.'' The NDAA of 2004 amended 
the MMPA as it relates to military-readiness activities and the ITA 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity. The 
training activities described in the USMC's application are considered 
military readiness activities.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another: (1) 
The manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals; (2) the proven or likely efficacy of the specific 
measure to minimize adverse impacts as planned; and (3) the 
practicability of the measure for applicant implementation, including 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity. NMFS 
has determined that the mitigation measures described below provide the 
means of effecting the least practicable adverse impacts on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.
    The USMC, in collaboration with NMFS, has worked to identify 
potential practicable and effective mitigation measures, which include 
a careful balancing of the likely benefit of any particular measure to 
marine mammals with the likely effect of that measure on personnel 
safety, practicality of implementation, and impact on the ``military-
readiness activity''. These proposed mitigation measures are listed 
below. Mitigation monitoring is also described in the Marine Mammal and 
Protected Species Monitoring Plan, the specifications of which are 
included as conditions in the IHA. While the primary focus of 
monitoring for both mitigation and reporting shall be on bottlenose 
dolphins, personnel will also attempt to identify any other marine 
mammals that might be present within the exclusion zone. In the 
unlikely event that a marine mammal other than bottlenose dolphin is 
sighted within the exclusion zone or determined to have been stranded, 
injured or killed by target operations, then the same mitigation 
measure for delay of exercises (described later in this document) 
prescribed for bottlenose dolphins, or immediate suspension of 
activities, shall apply, and relevant information will be included in 
weekly reports and post-IHA monitoring reports.
    (1) Range Sweeps: The VMR-1 squadron, stationed at MCAS Cherry 
Point, includes three specially equipped HH-46D helicopters. The 
primary mission of these aircraft, known by the military acronym PEDRO, 
is to provide search and rescue for downed 2\d\ Marine Air Wing 
aircrews. On-board are a pilot, co-pilot, crew chief, search and rescue 
swimmer, and a medical corpsman. Each crew member has received 
extensive training in search and rescue techniques, and is therefore 
particularly capable at spotting objects in the water.
    PEDRO crew will conduct a range sweep the morning of each exercise 
day prior to the commencement of range operations. The primary goal of 
the pre-exercise sweep is to ensure that the target area is clear of 
fishermen, other personnel, and protected species. The sweep is flown 
at 100-300 m (328-984 ft) above the water surface, at airspeeds between 
60-100 knots. The path of the sweep runs down the western side of BT-
11, circles around BT-9 and then continues down the eastern side of BT-
9 before leaving. The sweep typically takes 20-30 minutes to complete. 
The Pedro crew is able to communicate

[[Page 72811]]

directly with range personnel and can provide immediate notification to 
range operators. The PEDRO aircraft will remain in the area of a 
sighting until clear if possible or as mission requirements dictate.
    If a marine mammal is sighted during a range sweep, sighting data 
will be collected and entered into the US Marine Corps sighting 
database, web-interface, or report generator and this information will 
be relayed to the training Commander. Sighting data includes the 
following (collected to the extent possible): (1) Species 
identification; (2) group size; (3) the behavior of marine mammals 
(e.g., milling, travel, social, foraging); (4) location and relative 
distance from the BT; (5) date, time and visual conditions (e.g., sea 
state (as indicated by Beaufort Wind Force Scale), weather) associated 
with each observation; (6) direction of travel relative to the BT; and 
(7) duration of the observation.
    (2) Cold Passes: All aircraft participating in an air-to-surface 
exercise will be required to perform a ``cold pass'' immediately prior 
to ordnance delivery at the BTs both day and night. That is, prior to 
granting a ``First Pass Hot'' (use of ordnance), pilots will be 
directed to perform a low, cold (no ordnance delivered) first pass 
which serves as a visual sweep of the targets prior to ordnance 
delivery to determine if unauthorized civilian vessels or personnel, or 
protected species, are present. The cold pass is conducted with the 
aircraft (helicopter or fixed-winged) flying straight and level at 
altitudes of 200-3,000 ft (61-914 m) over the target area. The viewing 
angle is approximately 15 degrees. A blind spot exists to the immediate 
rear of the aircraft. Based upon prevailing visibility, a pilot can see 
more than one mile forward upon approach. The aircrew and range 
personnel make every attempt to ensure clearance of the area via visual 
inspection and remotely operated camera operations (see Proposed 
Monitoring and Reporting section in this document). The Range 
Controller may deny or approve the First Pass Hot clearance as 
conditions warrant.
    (3) Delay of Exercises: An active range will be considered 
``fouled'' and not available for use if a marine mammal is present 
within 1,000 yards (914 m) of the target area at BT-9 or anywhere 
within Rattan Bay (BT-11). Therefore, if a marine mammal is sighted 
within 1,000 yards of the target at BT-9 or anywhere within Rattan Bay 
at BT-11 during the initial range sweep, the pre-ordnance delivery cold 
pass, or from range camera detection (see 4, later in this document), 
training will be delayed until the marine mammal moves beyond the 1,000 
yard radius from the BT-9 target, and is on a heading away from the 
safety zone, or out of Rattan Bay at BT-11. This mitigation applies to 
both air-to-surface and surface-to-surface exercises.
    (4) Range Camera Use: To increase the safety of persons, property, 
or protected resources near the targets, Range Operation and Control 
personnel monitor the target area through tower mounted safety and 
surveillance cameras. The remotely operated range cameras are high 
resolution and, according to range personnel, allow a clear visual of 
even small objects floating near the target. A new, enhanced camera 
system will be installed on BT-11 towers 3 and 7, and on both towers 
present at BT-9. The new camera system has night vision capabilities 
with resolution levels near those during daytime. Lenses on the camera 
system have focal lengths of 40 mm to 2,200 mm (56x), with view angles 
of 18[deg] 10' and 13[deg] 41', respectively. The field of view when 
zoomed in on the Rattan Bay targets will be 23 ft (7 m) wide by 17 ft 
(5 m) high. When focused on the mouth of Rattan Bay, the field of view 
will be 87 x 66 ft (27 x 20 m).
    Again, in the event that a marine mammal is sighted within 1,000 
yards (914 m) of the BT-9 target, or anywhere within Rattan Bay, the 
target is declared fouled. Operations may commence in the fouled area 
after the animal(s) have moved 1,000 yards from the BT-9 target and/or 
out of Rattan Bay.
    (4) Vessel Operation: All vessels used during training operations 
will abide by the NMFS' Southeast Regional Viewing Guidelines designed 
to prevent harassment to marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).
    (5) Stranding Network Coordination: The USMC shall coordinate with 
the local NMFS Stranding Coordinator regarding any unusual marine 
mammal behavior and any stranding, beached live/dead, or floating 
marine mammals that may occur at any time during training activities or 
within 24 hours after completion of training.
    (6) Delay of Operations: If there is evidence that a marine mammal 
has been stranded, injured or killed as a direct result of target 
operations, the USMC would immediately suspend those activities within 
the specific target area and re-evaluate the presence of bottlenose 
dolphins, or other marine mammals if necessary, around the specific 
target. The incident will be reported immediately to the Range 
Management Office and NMFS' Stranding Network and Office of Protected 
Resources.
    NMFS specifically investigated the efficacy of these mitigation 
measures during nighttime operations. The USMC identified that 
nighttime operations occur infrequently (less than 15 percent). In 
2007, 2008, and 2009, nighttime training involving high explosives 
occurred on 2, 10, and 0 nights, respectively. For the same years, 
training using inert bombs occurred on 20, 16, and 33 nights, 
respectively. These exercises last, on average, 2.5 hours but may last 
as long as 6 hours. Post-exercise training monitoring has never 
revealed evidence of a dolphin injury or fatality.
    Regardless of the infrequency of night exercises or lack of 
recorded marine mammal injuries or fatalities, NMFS evaluated the 
efficacy of marine mammal detection during low-light and no-light 
conditions as training will occur during these conditions. As described 
above, the new camera systems installed at BT-9 and BT-11 have night-
vision capabilities with resolution levels near those during daytime. 
In addition, pilots are outfitted with night-vision goggles which are 
able to detect a marine mammal breaking the water's surface. Pilots 
will observe the waters in line with the flight path upon approach to 
the target. In addition, the pre-training range sweeps and other 
methods designed to ensure vessels and the public are not around the 
BTs would be carried out and would contain a marine mammal detection 
component. Should a marine mammal be observed by the range camera 
operators, pilots or other USMC personnel within the designated ``no 
fire'' zones, the training would be delayed.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) 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 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals: (a) An increase in our 
understanding of how many marine mammals are likely to be

[[Page 72812]]

exposed to munition noise and explosions that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS; 
(b) an increase in our understanding of how individual marine mammals 
respond (behaviorally or physiologically) to gunnery and bombing 
exercises (at specific received levels) expected to result in take; (c) 
an increase in our understanding of how anticipated takes of 
individuals (in different ways and to varying degrees) may impact the 
population, species, or stock (specifically through effects on annual 
rates of recruitment or survival); (d) an increased knowledge of the 
affected species; (e) an increase in our understanding of the 
effectiveness of certain mitigation and monitoring measures; (f) a 
better understanding and record of the manner in which the authorized 
entity complies with the incidental take authorization; and (g) 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.
    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 
expected to be present within the action area are as follows:
    (1) Protected Species Observer Training: Operators of small boats 
and other personnel monitoring for marine mammals from watercraft shall 
be required to take the Marine Species Awareness Training (Version 2), 
maintained and promoted by the Department of the Navy. Pilots 
conducting Range Sweeps shall be instructed on marine mammal 
observation techniques during routine Range Management Department 
briefings. This training will make personnel knowledgeable about marine 
mammals and other protected species, and visual cues related to the 
presence of marine mammals and protected species.
    (2) Weekly and Post-Exercise Monitoring: Post-exercise monitoring 
shall be conducted the morning following an exercise, unless an 
exercise occurs on a Friday, in which case the post-exercise sweep 
would take place the following Monday. Weekly monitoring events will 
include a maximum of five pre-exercise and four post-exercise sweeps. 
The maximum number of days that will elapse between pre- and post-
exercise monitoring events will be approximately three days, which 
would occur only on weekends. If marine mammals are observed during 
this monitoring, sighting data identical to those collected by PEDRO 
crew will be recorded and logged. Monitoring is described in greater 
detail in the Marine Mammal and Protected Species Monitoring Plan.
    (3) Long-term Monitoring: The USMC has awarded the Duke University 
Marine Lab (DUML) duties to obtain abundance, group dynamics (e.g., 
group size, age census), behavior, habitat use, and acoustic data on 
the bottlenose dolphins that inhabit Pamlico Sound, specifically those 
around BT-9 and BT-11. DUML began conducting boat-based surveys and 
passive acoustic monitoring of bottlenose dolphins in Pamlico Sound in 
2000 (Read et al., 2003) and specifically at BT-9 and BT-11 in 2003 
(Mayer, 2003). To date, boat-based surveys indicate that bottlenose 
dolphins may be resident to Pamlico Sound and use BT restricted areas 
on a frequent basis. Passive acoustic monitoring (PAM) is providing 
more detailed insight into how dolphins use the two ranges by 
monitoring for their vocalizations year-round, regardless of weather 
conditions or darkness. In addition to these surveys, DUML scientists 
are testing a real-time PAM system at BT-9 that will allow automated 
detection of bottlenose dolphin whistles, providing another method of 
detecting dolphins prior to training operations. Although it is 
unlikely this PAM system will be active for purposes of implementing 
mitigation measures before an exercise prior to expiration of the 
proposed IHA, it will be operational for future MMPA incidental take 
authorizations.
    (4) Reporting: The USMC will submit a report to NMFS within 90 days 
after expiration of the IHA or, if a subsequent incidental take 
authorization is requested, within 120 days prior to expiration of the 
IHA. The report will summarize the type and amount of training 
exercises conducted, all marine mammal observations made during 
monitoring, and if mitigation measures were implemented. The report 
will also address the effectiveness of the monitoring plan in detecting 
marine mammals.

Estimated Take by Incidental Harassment

    The following provides the USMC's model for take of dolphins from 
explosives (without consideration of mitigation and with the 
conservative assumption that all explosives will land in the water and 
not on the targets or land) and potential for direct hits and NMFS' 
analysis of potential harassment from small vessel and aircraft 
operations.
    The method to estimate the number of marine mammals potentially 
taken by the specified activities is based on dolphin density, the 
amount and type of ordnance proposed, and distances to NMFS' harassment 
threshold criteria. The acoustic criteria for underwater detonations 
are comprehensively explained in NMFS' proposed IHA Federal Register 
notice for this action (75 FR 32398, June 8, 2010) and consider hearing 
and physiological damage and behavioral harassment for single and 
multiple explosions (Table 1).

                         Table 1--Effects, Criteria, and Thresholds for Impulsive Sounds
----------------------------------------------------------------------------------------------------------------
            Effect                 Criteria              Metric               Threshold              Effect
----------------------------------------------------------------------------------------------------------------
Mortality....................  Onset of          Goertner modified      indexed to 30.5 psi-   Mortality.
                                Extensive Lung    positive impulse.      msec (assumes 100
                                Injury.                                  percent small animal
                                                                         at 26.9 lbs).
Injurious Physiological......  50 percent        Energy flux density..  1.17 in-lb/in\2\       Level A.
                                Tympanic                                 (about 205 dB re: 1
                                Membrane                                 microPa\2\ = sec).
                                Rupture.
Injurious Physiological......  Onset Slight      Goertner modified      indexed to 13 psi-     Level A.
                                Lung Injury.      positive impulse.      msec (assumes 100
                                                                         percent small animal
                                                                         at 26.9 lbs).
Non-injurious Physiological..  TTS.............  Greatest energy flux   182 dB re 1            Level B.
                                                  density level in any   microPa\2\ = sec.
                                                  1/3-octave band
                                                  (>100 Hz for toothed
                                                  whales and >10 Hz
                                                  for baleen whales)--
                                                  for total energy
                                                  over all exposures.

[[Page 72813]]

 
Non-injurious Physiological..  TTS.............  Peak pressure over     23 psi...............  Level B.
                                                  all exposures.
Non-injurious Behavioral.....  Multiple          Greatest energy flux   177 dB re 1            Level B.
                                Explosions        density level in any   microPa\2\ = sec.
                                Without TTS.      1/3-octave (>100 Hz
                                                  for toothed whales
                                                  and >10 Hz for
                                                  baleen whales)--for
                                                  total energy over
                                                  all exposures
                                                  (multiple explosions
                                                  only).
----------------------------------------------------------------------------------------------------------------

    To calculate take, the distances to which animals may be harassed 
were considered along with dolphin density. The density estimate from 
Read et al. (2003) was used to calculate take from munitions firing 
(0.183/km\2\). Take calculations for munitions firing are based on 100 
percent water detonation (though the goal of training is to hit the 
targets), and do not consider pre-exercise monitoring or mitigation. 
Therefore, take estimates can be considered conservative.
    Based on dolphin density and amount of munitions expended, there is 
very low potential for Level A harassment or mortality and monitoring 
and mitigation measures are anticipated to further negate this 
potential. Accordingly, NMFS is not authorizing these levels of take. 
In total, from firing of explosive ordnances, the USMC is requesting, 
and NMFS is proposing to issue, the incidental take of 25 bottlenose 
dolphins from Level B harassment (Table 2). This take estimation is 
described in greater detail in the Federal Register proposed IHA notice 
(75 FR 32389, June 8, 2010).

      Table 2--Number of Dolphins Potentially Taken From Exposure to Explosives Based on Threshold Criteria
----------------------------------------------------------------------------------------------------------------
                                                                               Level A--Injurious
                                          Level B--Behavioral  Level B--TTS        (205 dB re         Mortality
             Ordnance type                     (177dB re         (23 psi)    1microPa\2\ = s or 13   (30.5 psi)
                                           1microPa\2\ = s)                           psi)
----------------------------------------------------------------------------------------------------------------
2.75'' Rocket HE.......................                   N/A          4.97                   0.17          0.06
5'' Rocket HE..........................                   N/A          3.39                   0.09          0.03
30mm HE................................                  2.55           N/A                   0.05          0.00
40mm HE................................                 12.60           N/A                   0.16          0.01
G911 Grenade...........................                   N/A          0.87                   0.03          0.01
                                        ------------------------------------------------------------------------
    Total..............................                 15.15          9.23                   0.5           0.11
----------------------------------------------------------------------------------------------------------------

     As described in the proposed IHA Federal Register notice for this 
action, the USMC and NMFS have determined that the chance of take from 
direct hit and vessel operation is discountable. The probability of 
hitting a bottlenose dolphin at the BTs can be derived as follows: 
Probability = dolphin's dorsal surface area * density of dolphins. The 
estimated dorsal surface area of a bottlenose dolphin is 1.425 m\2\ (or 
the average length of 2.85 m times the average body width of 0.5 m). 
Thus, using Read et al. (2003)'s density estimate of 0.183 dolphins/
km\2\, without consideration of mitigation and monitoring 
implementation, the probability of a dolphin being hit in the waters of 
BT-9 is 2.61 x 10<SUP>-</SUP>\7\ and of BT-11 is 9.4 x <SUP>-</SUP>\8\. 
Using the proposed levels of ordnance expenditures at each in-water BT 
(Tables 4 and 5) and taking into account that only 36 percent of the 
ordnance deployed at BT-11 is over water, as described in the 
application, the estimated potential number of ordnance strikes on a 
marine mammal per year is 0.263 at BT-9 and 0.034 at BT-11. It will 
take approximately three years of ordnance deployment at the BTs before 
it will be likely or probable that one bottlenose dolphin will be 
struck by deployed inert ordnance. Again, these estimates are without 
consideration to proposed monitoring and mitigation measures. The USMC 
is proposing three methods of exercise monitoring (i.e., PEDRO, cold 
pass, and range cameras). When considering the implementation of the 
mitigation and monitoring measures described above, the chance of a 
marine mammal being taken by direct hit is discountable.
    Interactions with vessels are not a new experience for bottlenose 
dolphins in Pamlico Sound. Pamlico Sound is heavily used by 
recreational, commercial (e.g., fishing, daily ferry service, tugs), 
and military (including the Navy, Air Force, and Coast Guard) vessels 
year-round. The NMFS' Southeast Regional Office has developed marine 
mammal viewing guidelines to educate the public on how to responsibly 
view marine mammals in the wild and avoid causing a take (http://www.nmfs.noaa.gov/pr/education/southeast). The guidelines recommend 
that vessels should remain a minimum of 50 yards (46 m) from a dolphin, 
operate vessels in a predictable manner, avoid excessive speed or 
sudden changes in speed or direction in the vicinity of animals, and 
not to pursue, chase, or separate a group of animals. The USMC will 
abide by these guidelines to the fullest extent practicable. The USMC 
will not engage in high speed exercises should a marine mammal be 
detected within the immediate area prior to training commencement and 
will not chase or pursue dolphins.
    Based on the description of the action, the other activities 
regularly occurring in the area, the species that may be exposed to the 
activity and their observed behaviors in the presence of vessel 
traffic, and the implementation of measures to avoid vessel strikes, 
NMFS believes it is unlikely that the operation of vessels during 
surface-to-surface maneuvers will result in the take of any marine 
mammals, whether in the form of behavioral harassment, injury, serious 
injury, or mortality.
    Aircraft will move swiftly through the area and will typically fly 
approximately 914 m (2,999 ft) from the water's surface before dropping 
unguided munitions and above 4,572 m (15,000 ft) for precision-guided 
munitions bombing. While the aircraft

[[Page 72814]]

may approach as low as 152 m (500 ft) to drop a bomb, this is not the 
norm and will not be done around marine mammals. Regional whale 
watching guidelines advise aircraft to maintain a minimum altitude of 
300 m (1,000 ft) above all marine mammals, including small odontocetes, 
and to not circle or hover over the animals to avoid harassment. NMFS' 
approach regulations limit aircraft from flying below 300 m (1,000 ft) 
over a humpback whale (Megaptera novaeangliae) in Hawaii, a known 
calving ground, and limit aircraft from flying over North Atlantic 
right whales (Eubalaena glacialis) closer than 460 m (1,509 ft). Given 
that USMC aircraft will not fly below 300 m on the approach, will not 
engage in hovering or circling the animals, and will not drop to the 
minimal altitude of 152 m if a marine mammal is in the area, NMFS 
believes it is unlikely that the operation of aircraft, as described 
above, will result in take of bottlenose dolphins in Pamlico Sound.

Negligible Impact and Small Numbers Analysis and 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, serious 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. 
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.'' A negligible impact finding is based on the lack of likely 
adverse effects on annual rates of recruitment or survival (i.e., 
population-level effects). An estimate of the number and manner of 
takes, alone, is not enough information on which to base a negligible 
impact determination. NMFS must also consider other factors, such as 
the likely nature of any responses (their intensity, duration, etc.), 
the context of any responses (critical reproductive time or location, 
migration, etc.), or any of the other variables mentioned in the first 
paragraph (if known), as well as the number and nature of estimated 
Level A takes, the number of estimated mortalities, and effects on 
habitat.
    The USMC has been conducting gunnery and bombing training exercises 
at BT-9 and BT-11 for years and, to date, no dolphin injury or 
mortality has been attributed to these military training exercises. The 
USMC has a history of notifying the NMFS stranding network when any 
injured or stranded animal comes ashore or is spotted by personnel on 
the water. Therefore, stranded animals have been examined by stranding 
responders, further confirming that it is unlikely training contributes 
to marine mammal injuries or deaths. Due to the implementation of the 
aforementioned mitigation measures, no take by Level A harassment or 
serious injury or mortality is anticipated nor is any authorized in the 
IHA. NMFS is authorizing 25 Level B harassment takes associated with 
training exercises.
    The USMC has proposed a 1,000 yard (914 m) safety zone around BT-9, 
a conservative measure considering that the distance to NMFS explosive 
Level B harassment threshold is 228 yards (209 m). They also will 
consider an area fouled if any dolphins are spotted within 1,000 yards 
(914 m) of the target area at BT-9, or anywhere within Raritan Bay 
(where BT-11 is located). The Level B harassment takes allowed for in 
the IHA will likely result in dolphins being temporarily behaviorally 
affected by bombing or gunnery exercises. In addition, takes may be 
attributed to animals not using the area when exercises are occurring; 
however, this is difficult to calculate. Instead, NMFS looks at whether 
the specified activities occur during times or within habitat important 
to vital life functions to better inform its negligible impact 
determination.
    Read et al. (2003) concluded that dolphins rarely occur in open 
waters in the middle of North Carolina sounds and large estuaries, but 
instead are concentrated in shallow water habitats along shorelines. 
However, no specific areas have been identified as vital reproduction 
or foraging habitat. Scientific boat-based surveys conducted throughout 
Pamlico Sound conclude that dolphins use the areas around the BTs more 
frequently than other portions of Pamlico Sound (Maher, 2003) despite 
the USMC actively training in a manner identical to the specified 
activities described here for years.
    As described in the Affected Species section of this notice, 
bottlenose dolphin stock segregation is complex with stocks overlapping 
throughout the coastal and estuarine waters of North Carolina. It is 
not possible for the USMC to determine to which stock any individual 
dolphin taken during training activities belong as this can only be 
accomplished through genetic testing. However, it is likely that many 
of the dolphins encountered will belong to the NNCE or SNC stock. These 
stocks have population estimates of 919 and 4,818, respectively. NMFS 
is proposing to authorize 25 takes of bottlenose dolphins in total; 
therefore, this number represents 2.72 and 0.005 percent, respectively, 
of those populations.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that the specified MCAS Cherry Point BT-9 and BT-
11 training activities will result in the incidental take of marine 
mammals, by Level B harassment only, and that the total taking will 
have a negligible impact on the affected species or stocks. Further, 
NMFS does not anticipate any impact on annual rates of recruitment or 
survival for any potentially affected stock.

Subsistence Harvest of Marine Mammals

    Marine mammals are not taken for subsistence use within Pamlico 
Sound; therefore, issuance of an IHA to the USMC for MCAS Cherry Point 
training exercises will not have an unmitigable adverse impact on the 
availability of the affected species or stocks for subsistence use.

Endangered Species Act (ESA)

    No ESA-listed marine mammals are known to occur within the action 
area; therefore, there is no requirement for NMFS to consult under 
Section 7 of the ESA on the issuance of an IHA under section 
101(a)(5)(D) of the MMPA.

National Environmental Policy Act (NEPA)

    In January, 2009, the USMC released an EA entitled ``Marine Corps 
Air Station Cherry Point Range Operations Marine Corps Air Station 
Cherry Point, North Carolina.'' The USMC's EA contains a thorough 
analysis of the environmental consequences of their proposed action 
(with specific sections for explosive ordnance, underwater detonations, 
vessel and tactical vehicle movements, weapons firing, non-explosive 
practice munitions use, and aircraft overflights on both land and water 
ranges) on the human environment, including a specific section on 
marine mammals. Based on the analysis in the EA, the USMC determined 
that their proposed action will not have a significant impact on the 
human environment. NMFS has reviewed the USMC's EA and

[[Page 72815]]

determined that it is sufficient in addressing the scope of activities 
identified in the IHA application, marine mammals potentially impacted 
by those specified activities, and the range of those impacts. NMFS 
made the USMC's EA available for public comment during the public 
comment period on the proposed IHA (75 FR 32389). NMFS has adopted the 
EA for its purposes of issuing an incidental take authorization to the 
USMC and will not prepare a separate EA. Based on review of the EA and 
comments received during the public comment period, NMFS has prepared a 
FONSI which is available upon request (see ADDRESSES). Therefore, 
preparation of an Environmental Impact Statement is not necessary for 
this action.

    Dated: November 18, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-29808 Filed 11-24-10; 8:45 am]
BILLING CODE 3510-22-P